Navigating the Thin Line Between the Deviation Rule and the Personal Comfort Doctrine
By: Maya Marshall
Under Georgia’s Workers’ Compensation Act (the Act), an injury is only compensable if it arises (1) out of and (2) in the course of the employment. O.C.G.A § 34-9-1(4); Mayor and Aldermen of the City of Savannah v. Stevens, 278 Ga. 166, 166 (2004); Frett v. State Farm Emple. Workers' Comp., 309 Ga. 44, 46 (2020). Although the two prerequisites to compensation must be satisfied for an employee to recover, this article will focus on the latter. See Stevens, 278 Ga. 166, 166 (2004). The “in the course of employment” element relates to the time, place and circumstances under which the injury takes place. Typically, injuries occurring in the course of employment include those sustained when the employee is engaged in activities incidental to her assigned work. Frett, 309 Ga. 44, 46 (2020). An injury, however, is generally not compensable when the employee is off duty, free to do as she pleases and is not performing any job duties.
A deviation is a type of act which can result in a finding that an injury was not “in the course” of employment. Under the deviation rule, “where an employee breaks the continuity of her employment for purposes of her own and is injured before she brings herself back into the line of employment, her injury does not arise out of or in the course of employment.” Gen. Accident, etc., Corp. v. Prescott, 80 Ga. App. 421, 423(1), 56 S.E.2d 137 (1949). When interpreting this rule, however, it is important to remember the continuity of employment is not broken by the mere fact an employee is ministering to her personal comforts or necessities. This exception to the deviation rule is known as the personal comfort doctrine. Under this doctrine, the continuity of employment is not broken when an employee performs activities which are necessary to the health and comfort of the employee and are often in a sense personal to herself. McDonald v. State Highway Dep't, 127 Ga. App. 171, 174, 192 S.E.2d 919, 923 (1972). To date, the courts have listed very specific activities that fall under the personal comfort doctrine, such as quenching an individual’s thirst, relieving hunger, using the restroom or taking prescribed medication. All of which are “necessary to the continuance of [an individual’s] breath of life.” Id.
Unlike the activities included under the personal comfort doctrine, activities that qualify as a deviation are not compensable due to the employee engaging in activities solely of a personal nature. Prescott, 80 Ga. App. 421 (1949). Generally, courts find the deviation rule applicable when an employee “steps aside from the employer’s business to do some act, not connected with the employer’s business.” Dixie Roadbuilders, Inc. v. Sallet, 318 Ga. App. 228 (2012). Specifically, courts have found a deviation from employment when an employee (1) leaves the employer’s premises to go home or to a restaurant for a meal; (2) runs a personal errand such as going to a shop; or (3) while traveling on business, goes on an excursion solely for personal entertainment. Stokes v. Coweta County Bd. of Educ., 313 Ga. App. 505 (2012). The courts have also created a distinct subcategory of the deviation rule to cover less pronounced deviations. A “slight deviation” has been defined as “an act so closely connected with the master’s affairs that even though the employee may derive some benefit from it, it may nevertheless be fairly regarded as arising out of and in the course of employment.” Lewis v. Chatham Cty. Savannah Metro. Plan. Comm'n, 217 Ga. App. 534, 534 (1995). An example of this can be seen when an employee driving to or from a destination, while acting within the scope of her employment, makes a slight detour from the customary route to stop and get a meal. Although this appears to be very similar to the personal comfort doctrine, the personal comfort doctrine differs from such because the activities included under the doctrine do not break the continuity of employment. Ultimately, compensability is typically found through the personal comfort doctrine when an employee’s actions are necessary to the health and comfort of the individual, while the slight deviation rule is most applicable when an employee takes a slight, but personal, detour that is so closely connected with the employer’s affairs. This small but significant difference between the two rules is what often leads to the conflation of the principles.
Because activities within the personal comfort doctrine have been defined for simplicity’s sake as actions that are reasonably necessary to sustain an employee’s comfort at work, some have attempted to stretch the applicability of the rule to activities that the judiciary did not likely intend to be included as acts of ministration. An example that is commonly seen in this context is when an employee smokes a cigarette on the employer’s premises. In these scenarios, arguments have been made that the smoking of the cigarette is an activity used to minister the personal comfort of the employee. Although this would appear to be true under the simplified definition of the personal comfort doctrine, such an argument does not uphold the apparent intent of the rule. Though the rule of law uses the terms “comforts” and “necessities” when defining this doctrine, and the acts of ministration included therein, the specific examples provided by the judiciary support the argument that the doctrine was intended more so to ensure an employee is permitted to perform the activities that are objectively necessary to the individual’s health and comfort, rather than activities that are subjectively necessary to provide an employee comfort or relief. This point is further supported by the judiciary’s specific inclusion of activities that are conclusively needed for an individual’s functioning throughout the day. If there was an intent to include activities that are subjectively necessary to provide comfort, the judiciary would have included such. Moreover, the Act specifically provides an employee with other avenues and exceptions to utilize when arguing compensability (i.e., the slight deviation rule, scheduled breaks, the going-and-coming rule, etc.), but asserting such an argument under the personal comfort doctrine is not the best means of doing so.
The distinction between a deviation, slight deviation or something which would fall under the personal comfort doctrine is fact-based and requires a thorough investigation of the events leading to the injury.
Attorney Contact Info
Maya Marshall
maya.marshall@swiftcurrie.com
470.369.4871