This is a very fact specific issue. Sometimes, as will be discussed in detail below, the most minor details can effect whether an injury is found to be compensable. Typically, injuries that occur during a lunch break are deemed to occur outside the scope of employment and therefore not compensable. Of course, there are limited circumstances when the injury may be found compensable, such as when the employer continues to exercise authority over the employee during the lunch break or the employer derives a benefit from the employee’s decision to purchase lunch at a particular location (Matter of Smith v City of Rochester, 255 AD2d 863 [1998]).
The Board has ruled “[I]n the absence of special circumstances, such as a direction on the part of the employer, performance of some duty during the lunch hour, or a lunch period at some odd time caused by something connected with the work, an employee is not considered to be in the course of his employment” (Matter of Guido v Terra-Rube Constr. Corp., 7 AD2d 554 [1959], affd 10 NY2d 858 [1961]).
I was successful in defending a claim filed by an employee who alleged injuring her back and right knee as the result of a fall on an escalator while on a break from work. The employer was located in a mall and the claimant testified she had taken a coffee break and feel on an escalator when going to get coffee. During cross-examination, the claimant testified while on her break she also stopped and purchased a sweater. This minor fact is likely the reason why the Board Panel ruled the claimant was on a lunch break, and therefore the accident did not occur within the scope of her employment. Had this important fact remained unknown, it is likely the Board would have ruled the claimant had been on a coffee break and therefore the injury was within the scope of her employment.
In short, injuries that occur during lunch break are generally found to have not arisen out of and in the course of employment.
