Cost of violence could include workers' comp
July 1, 1997 5 minutes read
Cost of violence could include workers’ comp
Does firing a violent worker violate the ADA?
Preventing workplace violence is not only a safety and security issue, but a financial one as well. Various liability issues could arise, depending upon the circumstances involved in the violent event, including those related to workers’ compensation laws and the Americans with Disabilities Act (ADA).
Workers injured from assaults or other workplace violence typically are covered by workers’ compensation and cannot sue their employers outside of that system, but they can sue the patient or visitor who caused or contributed to their injuries, says Joan L.G. Morgan, JD, a partner with law firm Slagle, Morgan and Ellsworth in Seattle, a workers’ compensation practice.
"A worker is permitted to pursue a third party who caused their injuries, such as a patient or a person in the emergency room, and the employer has a lien against the recovery from that third party," Morgan tells Hospital Employee Health. "Under their workers’ compensation system, the employer has to pay out, say, $100,000 in benefits to the injured worker. Then the employer has the right to recover the amount given in workers’ comp benefits."
If the injured employee does not sue the third party, the employer has the right to do so, she adds. However, if the person being sued has no money, the employer bears the total financial impact of the injuries caused by violence against that worker.
Safety measures minimize costs
"Most times when it comes to workers’ compensation and violence in the workplace, the employer is going to bear the responsibility for all of the costs, and the only thing employers can do to help minimize those costs is to try to set up effective safety measures. That gets back to workplace safety and health issues," Morgan says. "Frankly, there aren’t a lot of requirements with respect to violence. This has all been coming to the forefront in the last couple of years."
To minimize workers’ compensation liability, Morgan suggests hospitals take action in two main areas. One is to hire consultants to perform safety assessments. Safety experts can determine the best means of protecting workers from violence without compromising the hospital’s functions. In addition, she advises hospitals to train workers and supervisors in conflict identification and resolution. (See related story, p. 76.)
Despite employers’ best efforts, employees still can be injured by unpredictable violent incidents. Are employers always immune from civil liability if a worker is injured on the job?
If a hospital is paying workers’ compensation premiums for that worker, chances are it cannot be sued outside the workers’ comp system. However, Morgan notes that determining which employer receives immunity from civil suits can be complicated.1 For example, many hospitals employ temporary help, such as nurses, from agencies. They typically are classified as employees of the agency, not the hospital for whom they performed services. This generally means that temporary workers are free to sue employers for whom they performed services, claiming negligent lighting of a parking lot which led to an assault, negligent training, or negligent hiring of a violent co-worker.
"The potential theories of liability are limited only by the imagination of plaintiff’s counsel," Morgan says.
Another example of an employer losing immunity from suit by an injured worker involves an employer being sued in a different capacity.
"Under the dual persona’ theory, workers could sue for harm if the employer owns a building or parking lot and is sued in the role of a landlord," she explains.
Employers can be sued in their individual capacity as owners of the land upon which harm occurred. "That is, the property owners leased the land to the business that employed the injured worker. The law is clear that immunity is only designed to protect the employer in its capacity as employer," she says.
In cases of worker-perpetrated violence, employers can be held liable for harm if they fail to perform a reasonable pre-hiring investigation of an employee who injures another person in the course of a violent act. Suits also have been brought when an employer knows that an employee has threatened a specific person but has failed to warn that person. Retaining a violent worker after an incident also leaves an employer open to lawsuits.
Must violent workers be retained?
Nevertheless, the ADA might prevent employers from firing certain workers who exhibit violent behavior. The law states that employers may not discriminate on the basis of disability against a qualified individual with a disability, Morgan points out. Employers must reasonably accommodate employees with physical or mental impairments, which include any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities, according to the ADA. However, the definition does not include personality traits such as a quick temper or poor judgment when they are not symptoms of a mental or psychological disorder.
Employers can require that employees not pose a direct threat to the health or safety of others. However, if the employee poses a direct threat due to a disability, employers must determine whether a reasonable accommodation could eliminate the risk or reduce it. Only if no accommodation exists can an employer refuse to hire an applicant or discharge an employee who poses a direct threat. Even so, under the ADA, employers cannot deny employment opportunities to people with disabilities because of a slightly increased risk. The risk can be considered only when there is a high probability of substantial harm, Morgan says.
"Such considerations must rely on objective, factual evidence not subjective perceptions, irrational fears, patronizing attitudes, or stereotypes about the nature or effect of a disability," she states.
Many circumstances could exist in which the level of threat is not sufficient to be considered direct, yet it could be enough to render the employer negligent for hiring or retaining a worker. Morgan suggests that one of the few measures hospitals can take to satisfy the ADA and avoid other civil liability is to establish and enforce policies against workplace violence.
"Theoretically, if an employee violates a company policy against violent outbursts in the workplace, whether the outburst is due to a disability or not, it may render that worker not qualified to do the job," she says.
Reference
1. Morgan JLG. Workplace violence from a workers’ compensation perspective. World Wide Web: http://www.wkg. com/resources/labor_employment/workcomp.htm.
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