California Police Chief- Fall 2013 | Page 8

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.” A Trusted Legal Team… Experts in Public Sector and Law Enforcement Issues – Over 30 years of experience • • • • • • Municipal Law City Attorney Code Enforcement/City Prosecutor Government Tort Defense Internal Affairs Investigations Management & Operational Audits Representing over 75 California Cities and Public Agencies, including: • • • • • • Training in Personnel & Labor Issues Redevelopment Water Law ADA Review & Revision of Policy Manuals Health & Safety Recieverships Contact us today! 3777 N Harbor Blvd., Fullerton, CA 92835 www.jones-mayer.com Jones & Mayer Attorneys at Law (714) 446-1400 8 California Police Chief | www.californiapolicechiefs.org