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As the 2015 National Workers’ Compensation and Disability Conference concluded in Las Vegas last week, there were workers in restaurants and the concert venue in Paris experiencing real time workplace violence scenarios just like those discussed at the conference. Joining tragedies such as Virginia Tech, Sandy Hook and Columbine, the world will focus on the lives lost and the evil that is ISIS, all the while never realizing how much these events have impacted our day to day lives during the last decade. So it was rather fortuitous that the conference included a discussion of the issue of workplace violence. In a session titled “Extreme Violence in the Workplace,” Albert B. Randall, Jr., a principal at Franklin & Prokopik in Maryland, and Lori Severson, a vice president at Lockton, led attendees in a thoughtful discussion encompassing everything from the definition of workplace violence all the way through implementation of prevention tips. Whether preparing for the possibility of an active shooter or just dealing with a workplace bully, this session provides valuable insights for all employers.
Terrorism aside, the U.S. Department of Labor reports that nearly two million employees report experiencing workplace violence each year. Homicide is the fourth leading cause of fatal occupational injuries in the U.S. and the leading cause of death for women. OSHA reports an average 25,000 workplace assaults annually, most of which occur in the healthcare field. But not all workplace violence results in death. Workplace violence can start with simply disruptive behavior and possibly never escalate to physical acts. The Crisis Prevention Institute identifies a continuum of violent behaviors starting with discourtesy, disrespect, intimidation, harassment/bullying, retaliation, verbal assault and finally physical aggression. Regardless of the extent of the acts, the cost of workplace violence is reported to be between $3 to $5 billion annually with jury awards in the millions, so it's definitely an employment risk in need of management.
Four types of workplace violence were identified in the session: 1) violence by strangers, 2) violence by customers; 3) violence by fellow employees; and 4) violence by a person known by the employee. Jobs with higher risk factors tend to involve guarding, teaching, delivery, care providers, pharmaceuticals and more generally, anything involving the exchange of money, interacting with the public, late or early hours, working alone or in high crime areas. However, extreme active shooter events are unpredictable and sometimes random, rendering such risk factors meaningless. There were 160 active shooter incidents between 2000 and 2013, leaving 486 people dead and another 557 wounded. Since there is little we can do to avoid these occurrences completely, the best thing to do is prepare.
Employers were encouraged to implement an emergency action plan, outlining an evacuation procedure and emergency notification system. Then, more importantly, employers were reminded that employees need to be made aware of those plans. Many attendees commented that their plans were implemented after an event or in response to fear of similar circumstances. A college employee commented that professors at her institution were fearful after Virginia Tech that something similar could happen to them and it was the need to alleviate those fears that initiated the implementation of their emergency response plan.
As a general proposition, employees need to understand that no violence of any kind will be tolerated and to recognize the repercussions. Employers must enforce policies or risk laches defenses such as that horseplay was tolerated. For extreme circumstances, training exercises should be conducted so that employees understand what to do and where to go in the event of a crisis. Survival mindset is important as opposed to hero mindset and employees are encouraged to run/escape if possible, hide if not and fight only as a last resort. However, if such training is planned, it may be wise not to surprise the employees. In another session highlighting the most bizarre work comp cases of 2015, Larson’s Workers’ Compensation Law co-author Thomas A. Robinson spoke of a nursing home that decided to hold an active shooter drill at their facility and had a police officer burst into the office, put a gun to a worker’s head and threaten to kill her. The worker filed a civil suit alleging intentional injury and the employer requested summary judgment on the basis of exclusive remedy, which was denied, leaving the civil suit allowed to proceed. So perhaps training should have some limits.
Now given that this was a session at a workers’ compensation conference, it is important to also remember that while the horrors of these tragedies are reprehensible, there are very real legal issues involved that also need to be understood. Other than privately motivated intentional acts of third parties and acts of neutral origin, most workplace violence injuries will tend to arise out of the course and scope of employment and be covered by workers’ compensation. When determining whether an injury is compensable or not, there are a number of risk doctrines to consider. The proximate cause doctrine requires that the employment be the proximate cause of the injury. The peculiar risk doctrine makes the injury compensable if the employment peculiarly exposed the worker to a materially greater risk of injury. The increased risk doctrine is broader in that the employment simply increases the risk of injury. And finally the actual risk doctrine and the positional risk doctrine are risks specifically associated with the type or work or where or how it is performed.
There are some available defenses to violence-related comp claims such as horseplay and intoxication, and a victim that escalates the initial aggression will not be entitled to benefits. However, depending upon the circumstances, even those defenses may prove to be irrelevant if the employer acquiesced in the conduct. In mixed risk injuries where only one of the two causes is compensable alone, the law does not weigh the relative importance and the injury will likely be covered. And of course presumption cases for emergency workers cover all types of conditions not typically covered by comp, a category further broadened by new exposures created by terrorist attacks.
With regard to the claims themselves, know that employees can be compensated as the victim or as a witness for physical and/or mental injuries by co-workers or third parties. The injury is typically a one-time occurrence but could be the cumulative effect of several. And the injury may take on more than one form. Besides the obvious physical injury, there are the physical/mental claims where the physical injury leads to a psychological component, the mental/physical claims where the psychological condition arises out for the employment and leads to a physical injury and the mental/mental claims where the extraordinary or usual stress of the job leads to a psychological injury. But compensability should not be treated as a foregone conclusion. An example was provided of a female employee’s claim for sexual assault by a coworker in the employer’s bathroom that was not covered by workers’ compensation. The court found the coworker’s motivation purely personal and the employee was on break at the time of the assault, taking it out of the course and scope. However, that also removes the exclusive remedy and instead makes it a personal injury suit against the employer, so be careful what you wish for when denying claims.
So as we grieve the lives lost in Paris, let us implement lessons learned at this year’s National Workers’ Compensation and Disability Conference in all of our workplaces in hopes of avoiding further loss of life to senseless violence. While the world of workers’ compensation is far from glamorous or internationally influential, perhaps we can still make these deaths slightly more meaningful by learning valuable lessons that could one day save other lives in our very own workplaces.
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Mark your calendars: 25th Annual National Workers' Compensation and Disability Conference, New Orleans Ernest N. Morial Convention Center, Nov. 30-Dec. 2, 2016