Changing trends in workplace violence and workers comp

According to Jeff Cole, a VP at Sentry Insurance, workers comp insurers have seen a four-fold increase in injuries related to violence over the past 25 years and a doubling of the average cost per claim. The claims are complicated, sometimes involve psychological injury, and increasingly lawsuits have escaped the shield of exclusive remedy. Employers should be aware of these four trends:

1. Most claims are driven by individual assaults

   Mass shootings, while horrific and highly publicized, are statistically rare. Many employers now have formal safety management practices for active shooter events. But the more frequent smaller incidents often catch employers off guard. Organizations that have active shooter training can be complacent about other workplace violence risks.

   Some cases involve domestic violence that spills into the workplace, others robbery, disputes with customers, coworkers, or supervisors, dating relationships, frustration in healthcare settings, mental and behavioral health problems, insufficient security personnel and training, and so on. Employers are largely unprepared for such issues and are unaware of the liability issues until an incident occurs.

   At the heart of the problem is an understanding of the wide spectrum of workplace violence. It's everything from bullying and harassment to physical violence. Unfortunately, physical assaults and homicide are on the rise. According to the Bureau of Labor Statistics workplace fatalities due to violence increased 11.6 percent in 2022. Combatting violence starts with zero tolerance for harassment and bullying and having policies in place regarding responsibilities and response. Training such as situational awareness and de-escalation strategies, as well as a strong assessment of potential threats, are key.

2. More court cases are escaping exclusive remedy

   Experts say the increase in lawsuits overcoming the exclusivity defense shows a changing legal landscape regarding workplace violence. Two cases in Virginia, which has strong workers comp exclusivity provisions, have gotten past the exclusive remedy defense and are moving forward. One involves a former elementary school teacher who was shot in a classroom by a 6-year-old student, who she alleges had a history of violence, and the other a store employee present during a shooting at a Walmart in Chesapeake.

   To be compensable under work comp, an injury must occur in the course of employment and arise out of employment. A recent case in Oklahoma illustrates how it can be challenging to determine whether an act of violence in the workplace "arises out of employment." The case involved a financial adviser who was shot by a 90-year-old coworker suffering from psychological issues at a Morgan Stanley office (the coworker died before the case was heard). The victim sued the shooter's estate for assault, battery, and emotional distress and sued the shooter's wife for negligence.

   The district court issued summary judgment in favor of the estate, ruling that the exclusive remedy provision of workers comp applied regardless of whether the coworker was acting within his course and scope of employment when the shooting occurred. The court reasoned that the focus was on whether the injured employee was acting within the course and scope of his employment at the time of the incident, not the employee who caused the injury. However, the state Supreme Court disagreed, arguing the employee who injures another employee must be acting within the course and scope of their employment when the incident occurs.

   In some cases, courts have ruled that if an assault is purely personal, the assailant is not a coworker, and there is no connection between the assault and the employment other than the fact that it occurred at work, the claim is not compensable. However, there are many gray areas and rulings vary by state. In New York, a recent case involved a resident who sued the hospital and the store that sold the rifle used in a mass shooting at the hospital, alleging negligence. The hospital argued the exclusive remedy applied.

   While the Workers' Compensation Board found the injuries compensable, the Appellate Division overturned noting the lack of evidence establishing any employment-related connection between the injured worker and the shooter. The shooter was a disgruntled former employee whom the resident did not know. Upon appeal, the Court of Appeals overturned the ruling of the Appellate Division. The ruling notes the absence of evidence regarding the motive in workplace assault cases does not counteract the presumption that when an injury occurs at work, it arose from the injured worker's employment and is compensable under the workers compensation law.

   The bottom line is in addition to workers compensation claims, employers are at risk for civil litigation such as serious and willful misconduct claims and other lawsuits alleging unsafe working environments or negligent hiring, supervision, and training. Further complicating the issue is that many states do not require workers comp to cover mental injuries that often are associated with violence under work comp and employees look to other avenues for coverage.

3. States are addressing workplace violence

   California has led the charge for improved mitigation of workplace violence risks, requiring most employers in the state to implement written workplace violence prevention plans that include annual workplace violence prevention training, violent incident logs, and other record-keeping measures. It's the first law of its kind in the country and is not industry-specific. In New York, a new law signed May 1 makes assaulting a retail worker a felony. The law features a five-point plan, which includes increasing criminal penalties for anyone convicted of causing physical harm to a retail worker performing their job.

   However, most states have focused on violence in healthcare. At least 29 states have passed or are looking to enact legislation that allows healthcare facilities to establish independent police forces to address a rising tide of violence against healthcare workers, according to a research report by the Journal of the American Medical Association. State legislatures are approaching the issue by either increasing punishment for perpetrators or by mandating that healthcare facilities implement prevention measures designed to improve workplace safety. Among others, Connecticut, Illinois, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, and Washington require healthcare employers to implement workplace violence prevention programs.

4. OSHA ramps up enforcement measures in healthcare

   Under pressure to create a workplace violence standard for healthcare, OSHA ramped up enforcement measures that have resulted in several well-publicized citations. After a licensed practical nurse was killed by a patient during a home visit in Willimantic, Connecticut, home care agency Elara Claring was cited for not implementing adequate measures to protect employees from workplace violence and non-compliance with injury and illness reporting standards. As a result, Elara Claring must implement corrective action plans and face up to $163,627 in penalties. The husband of the victim also filed a wrongful death suit against Elara Caring for their negligence.

   Melbourne, Florida-based Circles of Care Inc., which operates 10 behavioral health and substance abuse facilities, was cited for a repeat violation and an other-than-serious violation for various safety and health failures and issued $101,397 in proposed penalties after a patient used a metal hole punch to strike a mental health technician at a nurse's workstation.

   Since OSHA has no specific standard on workplace violence, citations have generally been issued under the General Duty Clause (GDC), which imposes an obligation on employers to provide each worker with "employment and a place of employment ... free from recognized hazards that are causing or are likely to cause death or serious physical harm." For example, OSHA cited the Houston-based pediatric healthcare provider, Texas Children's Hospital, for exposing employees working with patients with behavioral health issues to physical threats and assaults. The hospital was cited $15,625 under the GDC,but now is at risk of "repeat" violations of much higher amounts.

   In the Fall 2022 Regulatory Agenda, OSHA announced it would move toward rulemaking on a workplace violence standard for the healthcare industry. The Prevention of Workplace Violence in Health Care and Social Assistance standard is presently listed in the proposed rulemaking stage with a target date of December 2024 for a Notice of Proposed Rule Making.

For OSHA guidance on preventing workplace violence