Work Injury During Sex: Ridiculous?

This post comes to us from our colleague Charlie Domer in Wisconsin. While the topic of sex provides some entertaining context, Charlie does point out that, when you are traveling for business, even injuries that happen during non-work-related activities may be covered by workers’ compensation. While this article addresses Wisconsin law specifically, New York law is very similar.

Work Injury During Sex: Ridiculous? Not really. From time to time lurid headlines raise eyebrows about employees who claim worker’s compensation for injuries occurred during sex. The most common response is “How ridiculous . . . The employee is not being paid to have sex (unless she is a hooker).”

A most recent headline notes an Australian woman who had hotel sex with an acquaintance and was injured when a wall-mounted light fell on her during the encounter. She sought worker’s compensation because the incident occurred during a business trip and she claimed having sex on a business trip is “an ordinary incident of life” that entitles her to payment under worker’s compensation law.

Traveling employees are deemed to be in the course of employment at all times while on a trip

Traveling employees receive broad worker’s compensation coverage in Wisconsin under a 3-step analysis:

  1. Traveling employees are deemed to be in the course of employment at all times while on a trip (portal to portal);
  2. Except when engaged in deviation for a private or personal purpose;
  3. Acts reasonably necessary for or incidental to living are not deviations.

Skeptics may note that sex may or may not be reasonably necessary for living, but the last clause provides that acts merely incidental to living are not deviations and therefore coverage should be provided.

The traveling employee provision was created to remedy situations in which employees, whose work required them to live away from home for periods of time, were not compensated for injuries sustained during normal activities of daily living on a business trip. Wisconsin Supreme Court has issued a presumption that a traveling employee performs services incidental to employment at all times on a trip, with the burden of proving deviation falling to the employer.

Such widely varied activities as skiing, shopping, drinking, and swimming have been found compensable under the traveling employee statute. Recent court cases confirm that traveling employees may participate in reasonable recreational activities without deviating from their employment.

Many employee trips have a “dual purpose,” both personal and business. The Court’s criteria for coverage: If the business purpose could necessitate the trip even if the personal trip were cancelled, compensation is awarded.

Charlie Domer practices as part of the father-son duo team of Domer Law in Wisconsin. Charlie’s work representing injured workers has earned him recognition in 2008, 2009 and 2010 on the Rising Stars list in Wisconsin Super Lawyers. He is also a prolific writer and co-authored West’s treatise on Wisconsin Workers’ Compensation Law together with his father Thomas Domer. Together, Thomas and Charlie Domer work tirelessly to represent and protect the rights of Wisconsin’s injured workers.

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