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"other variables may involve the question whether the interval (break) is a right fixed by the employment contract, whether it is a paid interval, whether there are restrictions on where the employee can go during the break, and whether the employee's activity during this period constituted a substantial personal deviation."

That element of being paid was notably of importance to the Court's recent decision in of compensability when travelling to or from work (and the "going and coming rule).DSK Grp., Inc. v. Hernandez, ___ So.3rd ____; No. 1D19-2632, (Fla. 1st DCA 2022). The court explained:

"Put simply, if an employee is being compensated or reimbursed for his time traveling, or if he is traveling between two compensated activities, then he would not be traveling to or from work—even if the travel is to or from his home."

That might be seen as having consistencies with theDwight"variables" noted above, though that precedent is not cited by the Court. 

In a veryinteresting opinion, the Louisiana Second Circuit Court of Appeal concluded that a disease case was compensable.See West Nile Disease in Comp(August 2020). This decision was much studied after the onset of our recent pandemic and the overall vigorous interest in occupational disease cases, particularly as regards compensability of some exposure that might occur in a variety of places.See also Occupational Disease and the 1918 Flu(July 2020). Of note, the allegation in the Louisiana case was clearly related to a mosquito bite in the company breakroom. This perhaps at least suggests that the employee was on a break at the time, and the disease was nonetheless deemed compensable. 

Potentially, these cases thus suggest a potential distinction between lunch and other breaks, and in fact the Court discussed that inDwight. In doing so, the Court referred to Professor Larson and explained that breaks generally may be different from lunch breaks, depending upon variables such as durations, conditions, the employment contract, whether it is paid or not, and more. Therefore, an employer electing to pay for the lunch hour, in the scope suggested inDwightandHernandezmay or may not impact the compensability of anything that occurs during that break. 

In all, the concept of work breaks is not new or novel. The challenges with whether an employer may enforce a lunch break is intriguing, and perhaps illustrates how we as individuals are potentially different or even unique in our preferences for the workday. I have never been one for lunch breaks and usually eat something at my desk while I work. However, I had a coworker once that was punctilious about his hour from 12:00 to 1:00. He would literally stop mid-sentence and walk away when the clock struck 12:00, much likeFred Flintstonedeparting work when the whistle blew. 

Is it generational? Do workers now want a day that does not include the lunch break (shorter day)? Or, perhaps they want a shorter work week as is being explored in an experiment described recently by theBritish Broadcasting Corporation? Or, is it personal? do various people have valid and yet personal preferences for or against an enforced lunch period of some duration? The issues are interesting, and just another challenge for workers and employers to face as the define their respective relationships (with or without the workers' compensation implications in mind).

By Judge David Langham

Courtesy of Florida Workers' Comp