Extraordinary Workplace Misconduct: Firewalking may not be the best team building activity…

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As reported in the New York Times, more than twenty employees were injured last week during a team building activity during which they walked barefoot on hot coals (?!!!). The Times described that “Ten ambulances, two emergency medical teams and police from multiple agencies were deployed to assist, according the Zurich police. Thirteen people were briefly hospitalized. The Times further noted that this activity — originally a religious ritual found in a number of cultures — has become popular as a corporate team-building exercise in recent years. (Hmmmmmm….)

Now, I know employers are looking for creative and engaging ways to build workplace connections and foster team spirit, especially to break out of the isolation and social distancing of the past two years. But what were they thinking? (Okay, I just had to eliminate that.) And as a lawyer, I immediately started thinking about potential employer liability and the consequences of such an incendiary idea for a team building event, resulting in injuries to employees.

OSHA registration and reporting. First, the Occupational Safety and Health Administration has specific requirements for recording and reporting occupational injuries and illnesses. OSHA requires employers to keep records of “recordable” occupational injuries and illnesses. An injury or illness is recordable if it is work-related and meets at least one of the following criteria:

  • It results in death, hearing loss, loss of consciousness, days off work, restricted work, transfer to another job, or medical treatment beyond first aid
  • It is a serious injury or illness diagnosed by a physician or other licensed health care provider
  • This is a needle stick injury or a cut from a sharp object contaminated with another person’s blood or other potentially infectious material
  • The injured employee is medically removed under the medical surveillance requirements of an OSHA standard
  • The employee was exposed and then becomes infected with tuberculosis in the workplace

Within seven days, the employer must enter information about the illness or injury on OSHA Form 300 (the Injury and Illness Log) and complete OSHA Form 301 (the Incident Report). Then, at the end of the year, the log is summarized on OSHA Form 300A, which must be posted for three months, from February 1 to April 30. Some employers are also required to submit this information to OSHA electronically (although some modifications are proposed to this electronic reporting requirement, as we reported in our March 2022 Electronic Update).

Additionally, employers are required to submit a report to OSHA within eight hours of an employee’s death or within 24 hours of an employee’s hospitalization, amputation, or loss of an eye. following a work-related incident. Employers can phone the nearest regional OSHA office or call the toll-free number (800-321-OSHA). They can also submit an electronic report on OSHA.gov.

But is a team building injury considered work-related? According to OSHA, yes! In a Letter of interpretation 2009, OSHA said an employee’s injury that occurred during an offsite team-building event (go-kart accident, in case you were wondering) was work-related, since the employee had to be there as a condition of employment. The injury will then need to be assessed against the criteria listed above to determine if it was reportable and/or recordable.

Workers’ compensation. Next, is the injury covered by workers’ compensation? Where can the employer be sued? Now, worker compensation is a creature of state law, so there may be different results in various states. But in general, workers’ compensation is the exclusive remedy for injuries and illnesses that occur during employment. And recreational or non-work activities may be considered part of the employment relationship under some state laws.

For example, as Nancy Courson (self-proclaimed workers’ compensation nerd and chair of the Maryland Chamber of Commerce Workers’ Compensation Committee) notes that, in Maryland, recreational or social activities are within the scope of employment when (1) they occur on the premises during a lunch or recess period as a regular incident of employment; or (2) the employer, by expressly or implicitly requiring participation (I suggest that team-building would seem to fall into this category), or by making the activity part of an employee’s services, brings the activity in the orbit of the job; or (3) the employer derives a substantial direct benefit from the activity beyond the intangible value of improved employee health and morale that is common to all types of leisure and social life (perhaps be an increase in team spirit and cooperation in the workplace?). Other states have similar tests.

There is, however, an exception where an employer commits an intentional tort – which usually means that they intended to injure the employee or intentionally created a situation that would likely result in injury to the employee (again once, there are state variations on this standard). While I’m fairly certain that the employer here did not intend to toast its employees, it is possible that an employee-friendly state court could find that the activity of walking bare feet on hot coals is likely to lead to injury…

Now, in some states, if the team building activity is truly voluntary, the employee may not be eligible for workers’ compensation coverage and the employer may not be liable for any injuries sustained. by the employee. But this is not the case in all states. And if the employee engaged in foul play or horseplay, or injured himself because he was drunk (since alcohol is sometimes served at work-related recreational events), he he may not be entitled to workers’ compensation and the employer may not be otherwise. responsible for their injuries.

But overall, it’s probably best for employers to think carefully about their team building activities – and avoid those with a high risk of injury – or a high risk of injury! Don’t get caught off guard when choosing a team building activity or you could find yourself in the hot seat!

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