tion in an (athletic) activity is expected by
the employer, and (2) whether that belief is
objectively reasonable.”
Petitioner relied on the case of Wilson
v. Workers' Comp. Appeals Bd. (1987) 196
Cal.App.3d 902, where “an off-duty police
officer injured his ankle while running to
keep himself in good physical condition.
The officer was a member of the special
emergency reaction team (SERT), a tactical
unit of the city's police department, and
running to stay in good physical condition
was necessary to pass tests required to
remain a member of SERT. The court held
that the officer satisfied both elements of
the Ezzy test, and thus the injury was compensable. The Wilson case, however, did
not involve a police department regulation
. . . ” which distinguished it from the facts
in Taylor.
CONCLUSION
It is understandable, and beneficial
to the officer and the agency, for a law
enforcement agency to want its officers to
maintain physical fitness and to encourage it. What must be noted is that explicit
policies must be enacted, setting forth the
type of activity which is approved and,
even where such activity can be undertaken. Without such a policy, liability can arise
based upon the reasonable belief of the
employee that he/she is expected to engage in off duty physical fitness exercises.
In the Young case, although no policy
was in place, the agency required officers
to take physical fitness tests. That mandate, notes the court, justified the officer’s
belief that he was obligated to engage in
physical fitness activity. Furthermore, the
agency established no guidelines as to
what type of activity was approved, nor
when and where officer could participate
in such activity.
In the Taylor case, the court pointed
out that since the Berkeley Police Department articulated the types and locations
for such activity, as well as the need for
prior written approval, it protected the
agency from workers’ compensation
liability. The best of both worlds can be obtained, maintaining physical standards for
officers, and reducing liability for agencies,
through the implementation of policies. ■
Martin J. Mayer is a named partner with
the public sector law firm of Jones &
Mayer and has served as General Counsel
to the California Police Chiefs Association
for approximately 30 years.
“Specializing in providing
advice and representation to public
entities and California’s law
enforcement agencies.”
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