Workers’ Comp Issues Resulting from Workplace Violence
by Thomas Richard, Esq.
An understanding of workplace violence, and what is expected of employers is complicated; it combines many areas of law, including OSHA, labor and employment and workers’ compensation to name just a few. Working to prevent workplace violence, and liability for such, requires comprehension of the law and diligence, before it’s too late.
OSHA General Duty Clause states employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees. “Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970. California employers have a legal obligation to provide and maintain a safe and healthful workplace for employees and to establish, implement, and maintain a written, effective Injury and Illness Prevention Program (IIPP). Title 8 of the California Code of Regulations, Section 3203 of the General Industry Safety Orders.
Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors. Nearly 2 million American workers report having been victims of workplace violence each year.
Workers’ compensation is an important consideration in the workplace violence analysis. Employees are “automatically entitled to recover benefits for injuries ‘arising out of and in the course of the employment.’ ” Piscitelli v. Friedenberg (2001) 87Cal.App.4th 953, 986 [105 Cal.Rptr.2d 88].
According to the Exclusive Remedy Rule, generally, employees who sustain an injury “arising out of and in the course of the employment” are limited to recovery under the workers’ compensation system. Torres v. Parkhouse Tire Serv., Inc. (2001) 26 Cal. 4th 995, 1001. Also see Labor Code Section 3602(a). That means an entitled party is barred from civil actions against employers.
It is crucial to understand what constitutes “arising out of and in the course of the employment” when workplace violence is involved. There are certain parameters and exceptions. There are even instances where an employee or their family may be entitled to additional benefits, for example, where intentional employer conduct brings the employer “beyond the boundaries of the compensation bargain, for which a civil action may be brought.” Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 723 [112 Cal.Rptr.2d 195].
Workers’ Compensation attorneys should be aware of defenses to certain actions and Government Code requirements, such as reporting and consequences for failure to do so. In addition, litigators should able to advise their clients as to various issues, such as negligent hiring, its definition under the law, and techniques for prevention of workplace violence.
Every employer should have an effective Injury and Illness Prevention Program (IIPP) in place. OSHA has issued proposed rules to implement an IIPP, including active involvement of employees and their representatives in developing and implementing the Plan.
A plan should include methods the employer will use to coordinate implementation of the Plan and effective procedures to accept and respond to reports of workplace violence.
Of course procedures to develop and provide the training are essential; procedures to identify, evaluate and correct workplace violence hazards in a timely manner are also key. Finally, there should be procedures for post-injury response and investigation.
To learn more specifics about this very important subject, tune in to Thomas Richard’s webinar on this subject on 8/22/2019 from noon to 1pm.
© Copyright 2019 by Thomas Richard, founding partner of RTGR Law LLP
All rights reserved. Reprinted with permission.