Is sex a part of your workday (and covered by workers' comp)?
September 24th, 2019
Fiona Ong at Shawe Rosenthal
Death During Sex on Business Trip Was a “Workplace Accident”?!!!
Ah, the French. They have such a … cosmopolitan attitude towards sex. This was on display in a recent article that caught my eye, “Frenchman’s death during sex while on business trip a ‘workplace accident,’ court rules.” (That’s an attention-getter, isn’t it?)
According to the article, a Frenchman died of a heart attack while having sex with “a total stranger” at her home during an overnight business trip. (How tawdry! How titillating!) His employer denied responsibility for his death under the French equivalent of our workers’ compensation law, which provides compensation to employees/their estates for injury/death on the job. The employer argued that his death “occurred when he had knowingly interrupted his mission for a reason dictated solely by his personal interest, independent of his employment.” More specifically, he was no longer on a “mission” for his employer when he suffered the heart attack, which was attributable to “his sexual act with a complete stranger.” Well, that certainly seems to make sense. Sex is quite personal, isn’t it? (And I am particularly amused by the repeated emphasis on the fact that the sex was with a total or complete stranger. Would it have made a difference if he died while having sex with his wife or mistress? And is anyone else wondering if the “total stranger” was a prostitute?)
Well, the French court disagreed. The court ruled (in French, of course – I’ve attached an awkward translation, if you’re really curious) that an employee is entitled to the protections of the compensation law for the duration of the business trip, regardless of whether the accident occurred during a work activity or a personal activity, unless the employer can prove that “that the employee interrupted his mission for personal reasons.” The court then agreed with the compensation fund that “sexual intercourse is an act of everyday life, such as taking a shower or a meal.” Thus, the employer failed to prove “that the employee had interrupted his assignment in order to perform an act wholly unrelated to it.” (We’ll let that sink in for a moment, shall we?) Yes, according to the French court, sex is such a part of everyday living that it does not rise to a separate personal activity!!! It’s apparently just part of the workday!!! Like having lunch!!!
Apparently, this is not the attitude in Australia, however. In another article that I found, a government worker on an overnight trip was injured when a glass lighting fixture was pulled off the motel wall while she was having sex with “a friend” after dinner. (No prostitutes here. But apparently some energetic sex.) A lower court judge, with French sensibilities, found that sex is an “ordinary incident of life” and awarded benefits to the employee. Australia’s version of the Supreme Court, however, found that the injury did not arise as a result of work, as the employer did not induce or encourage the employee to engage in the sexual activity. This was heralded as “a victory for common sense” by Australia’s Employment Minister (similar to the head of the U.S. Department of Labor).
So, if this happened in the US, would our tragic Romeo receive workers’ compensation benefits? Workers’ compensation is a matter of state law. Under the workers’ compensation law in Maryland, a compensable injury is one that “arises out of and in the course of employment.” The employee is not entitled to compensation, however, for an “intentional, self-inflicted accidental personal injury.” (I question how something can be both intentional and accidental). An employer in Maryland may be on the hook for injuries during recreational activities, if it paid for or supported such activities. But presumably the employer here did neither (back to the prostitute question, though?). Does an injury from sex during an overnight work trip arise out of and in the course of employment? Can it be considered an intentional, self-inflicted accidental injury?
Because I can’t answer these questions (workers’ compensation, although related to labor and employment law, is its own specialized beast), I reached out to a self-described “workers’ compensation nerd,” Nancy Courson at Dirska & Levin LLC (who chairs the Workers’ Compensation Committee for the Maryland Chamber of Commerce). Once she finished laughing, she told me that this specific situation has not yet been addressed in Maryland, but that benefits have been awarded for injuries sustained while dancing at the hotel’s nightclub during a business trip. Also for a slip and fall during a shower (back to the everyday activities cited by the French court). Huh. So maybe injuries during illicit trysts would be compensable as well. At least in Maryland. According to Nancy, however, other states may lean more Australian.
C’est la vie.
This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original and their Labor & Employment Report blog on their website.