Conditions for Entitlement – Tests of Time, Place and Activity Policy 21-104 | Effective Date: January 23, 2017

Purpose 

The purpose of this policy is to further define the criteria used to identify if an accident meets the tests of time, place and activity. As outlined in Policy 21-100 Conditions for Entitlement – General Principles, WorkSafeNB applies these three tests, along with other information (e.g., medical information), when deciding if an accident arose out of and in the course of employment. 

Scope 

This policy applies to the adjudication of new claims for compensation under the Workers’ Compensation Act (WC Act), but does not include recurrences of injuries.

Statements 

1.0 General 

When a claim for compensation is made, WorkSafeNB adjudicates the claim based on section 7 of the WC Act. Policy 21-100 Conditions for Entitlement – General Principles outlines the decision-making framework used for adjudicating claims for compensation. This includes gathering information and weighing evidence to satisfy the tests used by WorkSafeNB to assist in determining if an accident arose out of and in the course of employment.  

WorkSafeNB determines if an accident arose out of the employment by gathering:

  • Information to show that the activity which caused the accident was work-related (section 1.3); and
  • Medical information to show that the extent and severity of the injury are compatible with the cause of the injury. In other words, the cause of the injury is compatible with the event described.  

For more information, see Policy 21-100 Conditions for Entitlement – General Principles. 

WorkSafeNB determines if the accident occurred in the course of employment by gathering information to show that:

  • The accident occurred at a time that is consistent with when the worker typically performs the employment or at a time when the worker has been asked to perform activities for the employment (section 1.1); and
  • The accident occurred at a place that is consistent with the place of employment or the employer’s premises (section 1.2).

This policy provides further guidance on gathering information related to the tests of time, place, and activity. The New Brunswick Court of Appeal confirmed the three tests as key criteria to assist in determining if an accident arose out of and in the course of employment. 

Although the tests of time, place and activity are presented separately in this policy, they are related and all three must be considered together when determining entitlement. WorkSafeNB accepts that an accident arose out of and in the course of employment when the presumption in ss. 7(2) stands, or when there is evidence to the contrary but all three tests are met on a preponderance of evidence, as legislated in ss. 7(2.1).

Policy 21-113 Decision-making provides additional information with respect to gathering information and weighing evidence. 

1.1 Test of ‘Time’ 

When gathering information to determine if the accident occurred in the course of employment, WorkSafeNB must be satisfied that the accident happened at a time that is consistent with when the worker is normally working. 

Generally, WorkSafeNB considers a worker’s normal work hours to begin at the time when the worker enters the employer’s premises to start the work shift, and to terminate at the time when the worker leaves the premises at the end of the shift. A worker’s normal work hours include the time the worker is:

  • Doing something for the benefit of the employer;
  • Doing something in response to instruction from the employer;
  • Being paid for the work; or
  • Allotted food or rest periods while on the employer’s premises.

A worker is also considered to be in the course of employment beyond the normal work hours when:

  • A worker arrives early or leaves late for the purpose of the employer’s business (e.g., working overtime);
  • Travel is required as part of the employment; or
  • A worker stays in a residential facility as a condition of the employment (see section 2.7).

However, even if an accident happened during a time that is consistent with the work, the accident is not considered to arise out of and in the course of employment unless the tests of place and activity are also met. For example, if a worker leaves the employer’s premises during normal working hours to go to the bank and has an accident while running a personal errand, the test of time is met but not the test of place or activity. 

1.2 Test of ‘Place’ 

In addition to determining “when” the accident occurred, WorkSafeNB must also gather information to determine if the accident occurred at a location that is consistent with where the worker normally works. This test is a key criterion used to establish the point where the risks switch from the normal risks faced by the general public to risks of the employment. 

A worker is on the employer’s premises when he/she enters any building or property (such as parking lots, grounds, sidewalks and private roads) owned or leased by the employer. It also includes any shared premises or any worksite where the employer is conducting business. 

In addition, WorkSafeNB expects the employer to have direct responsibility for the care and control of their own premises. Care and control is deemed to exist if the employer contracts, pays, or is otherwise responsible for the maintenance of the property, even if only indirectly through a sharing arrangement with other users. 

Therefore, an accident is generally considered to have occurred in the course of employment when:

  • It occurs on the employer’s premises; and
  • The worker is at the scene specifically because of the employment.

Typically, workers are not considered to be in the course of employment until they have reached the employer’s premises (the place of employment). 

In some cases, a worker may be considered in the course of employment before reaching the employer’s premises if the accident occurs while receiving payment or other financial consideration from the employer or while performing an activity for the benefit of the employment. For example, a worker may be in the course of employment if required to perform activities such as loading equipment into a vehicle before or after a work shift. 

Where an accident occurs at a location other than on the employer’s premises, WorkSafeNB must consider whether the worker was exposed to the risk because of the employment or as a member of the general public. 

However, even if a worker has an accident while at a location that is consistent with the work, the accident is not considered to arise out of and in the course of employment unless the tests of time and activity are also met. 

For example, on his day off, a worker has an accident while traveling down the private access road (logging road) to his work. The worker was on the private road to show his friends where he works. In this case, the activity was personal in nature, took place on his day off, and therefore would not meet the tests of time or activity. 

1.3 Test of ‘Activity’ 

To determine if an accident arose out of the employment, WorkSafeNB must gather information to determine if the activity being performed at that time and in that place was for the purpose or benefit of the employer’s business or related to the employer’s business. These activities may be:

  • Formal – the tasks are directly related to the worker’s job; or
  • Informal – the activities are related to the employment, but are not part of the normal tasks or assigned work.

In addition, WorkSafeNB must gather information to determine if the medical information shows that the extent and severity of the injury are compatible with the activity that was described as having caused the injury. 

WorkSafeNB may ask the following questions relating to formal and informal activities to determine if the activity was work-related:

  • Was the activity part of the job and/or included in the job description?
  • Was the activity directed or requested by the employer?
  • Was the activity during working hours, or outside of working hours?
  • Was the worker being paid at the time the activity caused the injury?
  • Was the activity supervised and/or a job requirement?
  • Was there intent for the activity to further the business interests of the employer?
  • Was the worker exposed to the same risks as he is exposed to in the normal course of production?
  • Was the injury caused by some activity of the employer or of a fellow employee?

The answers to these questions do not exclusively determine if an activity is work-related, rather they provide WorkSafeNB with information to consider when making a decision.

However, even if a worker has an accident while performing an activity that is consistent with the work, the accident is not considered to arise out of and in the course of employment unless the tests of time and place are also met. 

2.0 Special Circumstances 

Sometimes it is difficult to determine if an activity is work related, or if the accident occurred at a place that is considered the employer’s premises. The following sections outline special circumstances related to:

  • Temporary worksites (section 2.1);
  • Shared premises (section 2.2);
  • Working from home (section 2.3);
  • Food and rest periods (section 2.4);
  • Work-related travel (section 2.5);
  • Overnight travel (section 2.6);
  • Residential facilities (section 2.7);
  • Responding to an employment-related emergency or urgent business (section 2.8);
  • Parking lots and private roads (section 2.9); and
  • Wellness and athletic activities (section 2.10).

In addition to the criteria outlined in the following sections, WorkSafeNB must still apply the same tests of time, place and activity to assist in determining if the accident arose out of and in the course of employment (see section 1.0 above). 

2.1 Temporary Worksites 

WorkSafeNB considers temporary worksites to be the employer’s premises when the worker is directed or requested by the employer to be at the place as a condition of the employment. 

Temporary worksites are subject to the same tests and considerations that are applicable to permanent worksites.

For example, tradespersons on a project site, homecare workers at a client’s home, or workers attending off-site conferences or workshops at a college may be considered to be on the employer’s premises. 

2.2 Shared Premises 

Employers may share premises in office complexes or shopping malls with other employers. When the employer rents or leases office space or floor space in a mall, there is implied in the lease a ‘right of passage’ through elevators, common stairways, hallways, and parking lots. 

These shared areas are considered to be part of the employer’s premises and are subject to the same tests and considerations that are applicable to permanent worksites. 

For example, if a worker trips on loose carpet in a public hallway while en route to the employer’s place of business for employment purposes, the worker is considered to be on the employer’s premises, as the hallway is considered to be a common area. 

2.3 Working from Home

WorkSafeNB considers workers to be in the course of employment when working from home either on a permanent or temporary basis, provided that:

  • The worker was directed or requested by the employer to work from home; and
  • The work was for the purpose or benefit of the employer’s business.

WorkSafeNB generally considers that an accident meets the tests of time, place and activity when the worker has an accident while working from home and performing a function of the job, during hours that the worker would normally be expected to work.

However, if one of the three tests is not met (e.g., the worker was in the home office for a personal activity not associated with the employment) WorkSafeNB may consider the accident not to have arisen out of and in the course of the employment.

2.4 Food and Rest Periods

WorkSafeNB considers lunch hours, coffee breaks, or other similar rest periods to be work-related activities, provided the worker is making reasonable and proper use of the employer’s facility.

This also applies to workers at construction sites or similar sites while taking lunch or coffee breaks on site, and includes hazards inherent to the site, such as trenches or excavations.

Accidents that occur during food and rest periods are subject to the same tests and considerations that are applicable to other work-related activities.

WorkSafeNB does not consider accidents to have arisen out of and in the course of the employment when workers choose to leave the employer’s premises to eat or perform other personal errands.

2.5 Work-related Travel

Generally, workers are not considered to be in the course of employment while routinely travelling to and from their usual place of employment.  

However, when workers travel to a site other than their usual place of employment, they are considered to be in the course of employment if they are directed or requested by the employer to travel, or are expected to travel as part of the work duties. 

For example, an office worker may be expected to travel offsite for business meetings occasionally.

Only travel by the most direct route qualifies for being in the course of employment. Any return home or detour for personal business removes the worker from the course of employment. Once the journey is resumed, the worker is again considered to be in the course of employment. 

Workers whose employment requires them to travel from home to different job sites (such as installers, pieceworkers, home care workers) are considered to be in the course of employment from the time they leave home until they return home, if travel is an integral part of the worker’s duties. 

However, the worker would not be in the course of employment when travelling from home to the employer’s normal place of business. 

Workers are considered to be in the course of employment while being transported to and from the employer’s premises or job site in a vehicle under the care and control of the employer. 

Accidents that occur while traveling are subject to the same tests and considerations that are applicable to other work-related activities. 

2.6 Overnight Travel 

Workers required to stay away from home overnight are considered to be in the course of employment while making reasonable and proper use of the accommodations or restaurant facilities. However, workers are not considered to be in the course of employment when participating in wellness, entertainment, or other recreational activities of which the employer is not aware and has not directed or requested, even if they are on the accommodation premises. For more information on wellness and athletic activities see below (section 2.10). 

Accidents that occur while a worker travels overnight are subject to the same tests and considerations that are applicable to permanent worksites. 

2.7 Residential Facilities 

Workers staying in a residential facility may be considered to be in the course of employment while making reasonable and proper use of the facility, when the worker:

  • Is required to use the premises as a condition of employment; or
  • Is permitted to use the premises because the worksite is so remote that the worker had no reasonable alternative for accommodations.

For example, workers are considered to be in the course of employment if they accidentally burn their hand while cooking a meal. However, workers are not considered to be in the course of employment if they are snowmobiling on their personal time, for their own enjoyment, and have an accident, even if they were on the employer’s premises. 

Generally, when workers pay rent to reside at a location provided by the employer, the relationship between the employer and worker becomes that of a landlord and tenant. Therefore, WorkSafeNB may not consider the worker to be in the course of employment if accidents occur within the residential facility. 

Accidents involving residential facilities are subject to the same tests and considerations that are applicable to other employer premises.

2.8 Responding to an Employment-related Emergency or Urgent Business 

Workers who are not on shift, but are called to work by the employer to deal with an emergency or urgent business related to the employment, are considered to be in the course of employment from the time they leave home until they return home. 

Workers are no longer considered to be in the course of employment if they do not immediately return home or to their regular place of employment by the most direct route, following the emergency or urgent business. 

Accidents that occur while a worker responds to an employment-related emergency or urgent business are subject to the same tests and considerations that are applicable to other work-related activities. This section also applies to volunteer firefighters. 

2.9 Parking Lots and Private Roads 

Workers are entitled to safe entry and exit to and from the worksite. Therefore, workers are considered to be on the employer’s premises while using:

  • Attached or adjacent parking lots owned, operated, or leased by the employer;
  • Remote parking lots and public land between the remote parking lot and the employer’s premises, provided that the employer has arranged parking privileges for the worker at the location; and
  • A remote, public road segment that essentially serves as a private road (but is not owned by the employer) to the employer’s worksite. In this situation, the use of the road must be necessary to access the worksite, the worker must be making reasonable and permitted use of the access route, and the accident must result from a hazard of the route. 

These accidents are subject to the same tests and considerations that are applicable to other work-related activities. 

2.10 Wellness and Athletic Activities 

WorkSafeNB considers a worker to be in the course of employment while participating in wellness or athletic activities on the employer’s premises. However, WorkSafeNB must also apply the test of “time” and “activity” to determine if the accident arose out of and in the course of employment. 

WorkSafeNB does not consider the worker to be in the course of employment while participating in wellness or athletic activities off the employer’s premises, even if the employer pays for the activity as part of a wellness program, unless:

  • The employer directs, or requires the worker to participate in the activity, or the activity is a requirement of the worker’s employment; and
  • The activity was being performed at a location designated and/or approved by the employer.

For example, a worker would be in the course of employment when required to participate in a company softball game to build company morale. However, if participation were voluntary, the worker would not be in the course of employment.  

Similarly, a worker would be in the course of employment while using the company gym on the employer’s premises, however, the worker would not be in the course of employment while working out at a local fitness facility, even if the employer paid for the worker’s membership as part of a wellness program. 

Accidents involving wellness and athletic activities are subject to the same tests and considerations that are applicable to other work-related activities.

Workers’ Compensation Act (RSNB 1973, c W-13)

7(1), 7(2) and 7(2.1) 

Case Law

Workman’s Compensation Board v. Boissonneault (1977, New Brunswick Court of Appeal).

The Court ruled that:

  • If the place where the accident occurred is on the property (premises) of the employer or on a private road leading to the workplace or worksite, the accident is deemed to be “in the course of the employment” because the worker is then at the scene of the accident specifically by reason of employment;
  • The test is, whether the worker was exposed to the particular risk by reason of his/her employment, or whether he/she took the same risks as those incurred by any member of the general public using the highway;
  • Any journey which occurs before or after the worker reaches or leaves the sphere of employment (i.e., the employer’s premises or other specific worksite) is not considered to be an integral part of the employment, but is preparatory to, or subsequent to, the performance of the duties of employment;

Such journeys are regarded personal in nature, and the worker is not deemed to be ‘in the course of employment’ and is not covered under the WC Act;

  • The location of the accident is to be considered relative to the reason (time and activity) the worker was exposed to the risks at the accident site.

Any journey or activity of a personal nature, which removes the worker from the sphere of employment, removes that worker from coverage under the Act.

Gallie v. Workplace Health, Safety and Compensation Commission (1996, New Brunswick Court of Appeal)

This case reaffirmed the test as set down in the Boissoneault decision.

VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et al., 2011 NBCA 76

The Court stated that:

  • For evidence to be to the contrary within the meaning of s. 7(2) it must contradict, refute or be inconsistent with the presumption;
  • Equivocal evidence will not suffice as evidence to the contrary under the presumption; and
  • The expression “in the course of employment” embraces more than just the performance of the tasks described in the employment contract; it includes activities that are adjunctive or incidental to the worker’s contractual duties.

Policy 21-100 Conditions for Entitlement - General Principles

Policy 21-113 Decision-making

Black’s Law Dictionary, 6th Edition

Larson’s Workers’ Compensation: Desk Edition

Accident – includes a wilful and intentional act, not being the act of a worker, and also includes a chance event occasioned by a physical or natural cause, as well as a disablement caused by an occupational disease and any other disablement arising out of and in the course of employment, but does not include the disablement of mental stress or a disablement caused by mental stress, other than as an acute reaction to a traumatic event. (WC Act)

Adjudication – make a decision regarding a claim. 

Appeals Tribunal – means the Workers’ Compensation Appeals Tribunal established under the WHSCC & WCAT Act. 

Care and control – power or authority to manage, direct, restrict, regulate, govern, administer, or oversee. (adapted from Black’s Law Dictionary)  

Employer’s premises – includes buildings or property (such as parking lots, grounds, sidewalks, and private roads) owned or leased by the employer, and any worksite where the employer is conducting business. 

Residential facility – a dwelling provided by an employer at a worksite remote from a worker’s residence such as bunkhouses or campsites. 

WorkSafeNB – means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the WHSCC & WCAT Act.

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