What Do You Think: Was Meals on Wheels Accident Within Scope of Employment?

Newark, DE (WorkersCompensation.com). When an employer involves employees in volunteer work, that work can result in a compensable injury if it occurred within the scope of employment.

A case involving a customer service representative  for Sallie Mae who fell down some steps while delivering meals on wheels illustrates some factors that can make the difference in whether such an injury is compensable or not.

The CSR participated in Sallie Mae’s employee volunteer program. She selected Meals on Wheels as her volunteer activity.

The purpose of the EVP, according to Sallie Mae, was "extending PTO to an employee whose chosen volunteer activity occurs during the workday so that she can participate without having to use her personal leave time in order to do so."

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Sallie Mae gave employees complete discretion over what volunteer activity they chose, if any. An employee just needed to get management approval to ensure there was  sufficient staffing during her absence. Whether an employee volunteered or not had no impact on their job or how they were evaluated.

While delivering meals, the CSR fell down some stairs and injured her head, neck, right shoulder, and right side. She filed a workers’ compensation claim, which was denied.

On appeal, the court explained that an injury is compensable if it arises out of and in the course of employment.

In determining whether an injury sustained during volunteer work occurred within the scope of employment, courts consider whether:

1. The injury occurred on the premises during a lunch or recreation period as a regular incident of the employment;
2. The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of employment;
3. The employer derives substantial direct benefit from the activity.

The customer service rep argued that Sallie Mae brought the activity within the orbit of employment by regulating the EVP.

Were CSR’s injuries compensable?
A. No. Sallie Mae neither required her to volunteer nor treated her more favorably because she volunteered.
B. Yes. Sallie Mae created specific rules for volunteers, including the need to get permission to volunteer at a particular time.

If you selected A, you agreed with the court in Testa-Carr v. Sallie Mae, C.A. No. N23A-04-004 CEB. (Del. Super. Ct. 02/08/24), which held that the injury did not occur within the scope of employment.

The court pointed out that “making the activity part of the services of an employee” suggests that the employer expects the employee to engage in the activity. But there was no such expectation in this case.

“Instead, as already recognized, the evidence supports that there is no pressure from Sallie Mae on its employees to volunteer.” Further, Sallie Mae did not treat an employee more favorably or less favorably because the employee volunteered.

The court acknowledged that volunteers reaped the benefit of being able to use their PTO. “[H]owever, under circumstances where taking such time is completely optional and voluntary, volunteerism is not found to be part of the services of the employee, the court wrote.

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