Parker: On Leave Since 2019, a Sergeant Went to the Gym. Was That Work?

You work a job that demands physical fitness, and you get hurt or sick while keeping in shape on your own time. The usual answer in California workers’ compensation is that off-duty exercise is yours, and so is the injury. The exception turns on what your job expected of you, and whether it was reasonable to think so.

Lynette Parker’s case tested that exception in an unusual setting. She was a Richmond police sergeant on paid administrative leave when she caught COVID-19 at a commercial gym. The trial judge found the injury work-related, and the City asked the Workers’ Compensation Appeals Board to reconsider. In Parker v. City of Richmond, Nos. ADJ15490866, ADJ15490865, ADJ15312491 (WCAB Oct. 6, 2023), a panel denied the City’s petition and adopted the judge’s report. Both the sergeant and a department captain testified that officers had to stay fit while on leave, the department paid for the gym, and she could not use the station gym. By agreement, whether she caught the virus at the gym was never in dispute.

A sergeant on paid leave and a station gym she could not use

Parker went on paid administrative leave on March 19, 2019, during an investigation. She had to be home from 8 a.m. to 5 p.m. and to report any vacation or court appearance to her supervisor. She could not use the police gym, which the report says was closed and was also off limits to her while on leave.

The 2020 shelter-in-place order closed many businesses, including gyms, for several months. She gained weight and had back pain. When businesses reopened in November 2020, she went to a 24 Hour Fitness. Her date of injury is November 4, 2020.

The parties narrowed the fight before trial. They stipulated that if working out at the gym was part of her employment, the City would accept the COVID-19 claim. That left one issue for the June 2023 trial: whether catching COVID at that gym while on leave arose out of and in the course of her employment, that is, whether it counted as work-related. Parker and Captain Eric Smith testified. The judge issued findings on July 11, 2023, and the City asked the Board to reconsider.

Why a gym trip is usually outside the system

Labor Code section 3600(a)(9) excludes injuries from voluntary off-duty recreational, social or athletic activity that is not part of the job, with an exception. The injury is covered “where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

The test for “reasonable expectancy” comes from Ezzy v. Workers’ Compensation Appeals Board, 146 Cal.App.3d 252 (1983), about a law clerk who injured a finger at a firm softball game. The court asks two things: whether the employee subjectively believes the activity is expected by the employer, and whether that belief is objectively reasonable (146 Cal.App.3d at 260). It read the statute as a brighter line than the old foreseeability test (at 261), and said the Legislature meant to remove only injuries that were “remotely work-connected” (at 263). The clerk won. A partner who coached the team urged her to play, and the firm paid for equipment. The court called it a close case.

How the judge applied the two-part test

Our account of the testimony and the City’s arguments comes from the judge’s report. The report resolved the case under the reasonable-expectancy test.

The first step relied on what the City admitted: Both Parker and Captain Smith testified that officers were required to maintain physical fitness while on leave, and there was a possibility she would undergo what the report calls perishable skills testing. Since she could not use the police gym, the judge reasoned, it was reasonable for her to use the gym the department paid for.

Next, the judge wrote, Parker had to show her belief was objectively reasonable. The department paid for the gym, a captain admitted the fitness requirement, and the station gym was not accessible to her. The judge also pointed to what the public expects of police officers: “the ability to chase and subdue suspects at a moment’s notice.” The judge concluded that after over a year on leave, she had a reasonable belief she would be returning to work and needed to get back into shape.

In our reading, the facts resemble those that mattered in Ezzy: who paid and what the employer expected.

The back injury argument

In its petition, the City relied on a preexisting back injury. It argued that Parker’s belief was not objectively reasonable, because the back injury would have kept her from completing any testing on her return. “[S]he could not have completed the testing because of the back injury,” it said, as the report quotes it.

The judge wrote that no evidence supported that claim, calling it “purely speculative.” No medical reports were submitted showing any change in her work restrictions, and the back injury was not set for trial. The City also argued she could not complete some of her duties because of her back. She was not on medical leave or temporary disability when she caught COVID, the judge answered, and she had worked until she was placed on leave.

The judge’s legal answer was shorter. The back injury did not go to whether she believed going to the gym was expected or whether that belief was reasonable. The City, the judge wrote, seemed to want one standard for an officer on leave and another for an officer on leave with an unrelated back injury, and the injury was “not relevant to the issue at hand.”

Why the petition failed

A three-member panel, Chair Zalewski and Commissioners Dodd and Razo, denied the City’s petition for the reasons in Judge Erin Finnegan’s report, without adding reasoning of its own.

Three facts carried this result: Parker and a department captain both testified that officers had to stay fit while on leave, the department paid for the gym, and she could not use the station gym. Our Larson analysis covers another case under this statute, a firefighter’s trail-running injury, where the link to the job came from testimony about terrain and duties.

If you were hurt keeping in shape for work

These steps are our practical reading of Parker and Ezzy.

• Be ready to say under oath what you believed and why. A policy, a testing requirement or a supervisor’s testimony can support that belief and show it was reasonable.
• Show who paid and what was available. That the department paid for the gym, and that she could not use the station gym, mattered here.
• Connect the activity to the job. Say why this exercise, at this time, was tied to returning to work or passing a test.
• Be ready for the “you could not have passed anyway” argument. Show you were working until your leave began and were not on medical leave or disability when you were hurt. Those were the facts the judge relied on. Press the other side for evidence.
• Prove the source of the illness if it is disputed. In Parker the parties took that out of the case. If it is contested in yours, you will need evidence of it.

For representation in a dispute over whether an injury happened in the course of employment, see our California workers’ compensation practice.