Employees Who Get Sick from Food Provided at the Workplace May Not Have Workers’ Compensation Coverage

Even though an employee may suffer food poisoning from items eaten at the work site, it does not necessarily mean the person will be provided with workers’ compensation coverage for that illness.  To the contrary, unless there are specific facts that establish the employer’s control over the area where the food was distributed and over the preparation and handling of the food, coverage would probably be denied.

That was the situation in the case of Serraino v. Fauster-Cameron, Inc. (Ohio App. 3 Dist. 2013), No. 4-12-11.  In an effort to boost the morale of its employees, Fauster-Cameron asked local caterers to sell food in the break room.  They also made it known that anyone who had accesses to the break room, including the general public, could purchase food from the caterers.  Participation in the lunch program was optional and employees could eat elsewhere.  They were not provided with any type of discount on the caterers’ food but, instead, paid the same price as the general public.  Fauster-Cameron did not receive any portion of the caterers’ sales.

Ms. Serraino was provided with one hour of unpaid leave for lunch every day and was free to spend her lunch break as she saw fit.  On one particular day in August of 2005, she decided to buy her lunch from one of the caterers in the lunch break room.  She became ill shortly thereafter and sought medical treatment.  She was ultimately diagnosed with Salmonella poisoning.  Ms. Serraino filed a workers’ compensation claim for her illness and supplied an opinion from an epidemiologist that her sickness was contracted from the food provided by one of the caterers in the break room.  The Industrial Commission, denied her claim and she appealed that decision to the Defiance County Court of Common Pleas.  The Court entered summary judgment in favor of the Bureau of Workers’ Compensation and the employer. Ms. Serraino appealed.

In affirming the judgment of the trial court, the Court of Appeals looked at the definition of an injury under Ohio’s workers’ compensation laws.  In order to be compensable, an injury much occur “in the course of” and “arising out of” the claimant’s employment.  In determining the “arising out of” prong of the analysis, the Supreme Court has previously enumerated three factors to aid in determining whether a sufficient causal condition exists between the employee’s injury and their employment.  However, those three factors are not the sole method for determining causation.  The Third Appellant District pointed out that courts do have the discretion to consider various other factors.  Using the Supreme Court’s three prong approach the Commission and the Court are first required to look at:

1. Proximity of the scene of the accident to the place of employment;
2. The degree of control the employer had over the scene of the accident; and
3. The benefit the employer recieived from the injured employee’s presence at the scene of the accident.

In Ms. Serraino’s situation, the Court pointed out that while her employer did maintain control over the break room, they did not have control over the preparation, handling or distribution of the food by the caterers in the break room.  Because there was an insufficient link between the distribution and preparation of the food and the employer, the Court felt that there could be no causal connection between Ms. Serraino’s employment and her food poisoning.  This case might have turned out differently had her employer either subsidized the sale of the food or purchased the food for its employees in the break room.

While the result in the Serraino case is good for employers, the case should still be a warning to companies about providing food products for their employees during work hours.  If the employer encourages its employees to purchase food products in the workplace or if the employer provides the food, the employer should probably expect any health consequences arising from the ingestion of those foods to be a compensable claim.