Employee Injury, Quirky Question # 3

Quirky Question # 3:

I was called out to our company’s parking lot (we run a manufacturing facility) during a break because of a report that an employee had been injured and was bleeding outside our building.  Upon my arrival, I learned that the injured employee had created a homemade “shooting device” from a pipe, firecrackers, and ball bearings.  He was planning to show off the device to co-workers by doing some “target practice” during his break.  Unfortunately, he had the device turned backwards and he shot himself in the stomach.

How should our company respond to this situation?  What are our primary risks?

Dorsey’s Analysis:

This fact pattern raises a number of questions.

One of the first inquiries you need to consider is whether the injury is going to be compensable as a workers’ compensation claim? We doubt that it would be. In Minnesota, for example, the workers’ compensation statute applies to injuries that are suffered “arising out of and in the course of employment.” It seems extremely unlikely that your employee’s actions in building a “shooting device” at home, bringing it to work, and then demonstrating it (however ineptly) to his co-workers during a break and outside of your facility could possibly be considered to be in the “course of his employment.” Nevertheless, you should investigate and document your investigation to ensure that you are well prepared to address any workers’ compensation issues in the event they are raised.

A second inquiry is whether you should take any action against the genius employee who invented the “shooting device?” You should. This is clearly a situation involving unauthorized activity that created a serious risk of injury not only to the employee himself, but to his co-workers and possibly (depending on where your parking lot is located) members of the public. A disciplinary response would be especially warranted if your company has a formal policy that generally prohibits employees from engaging in activities that jeopardize the safety of the employees themselves or their co-workers. Even in the absence of this type of prohibition, presumably your policies proscribe “horseplay,” and the type of conduct involved here arguably falls into that category.

The severity of the discipline you elect to impose depends on a variety of factors: whether you have had other disciplinary problems with this employee; whether he previously has engaged in any conduct that put his co-workers’ safety in jeopardy; whether you have a progressive discipline system; whether your firm has encountered other types of problems in which employees have been injured, how you responded to them, and what discipline was imposed was imposed in those circumstances; other similar inquiries focusing on the dual issues of whether the punishment was proportional to the offense involved and your company’s past experience and past response.

A third inquiry is whether your firm should take any disciplinary action against any other employees? The answer to that question depends on whether other employees knew that the injured employee was involved in these activities and failed to report his intentions. Of course, you will need more information to evaluate this issue, including, at a minimum, whether the knowledgeable employees were supervisors or managers, whether they had specific information about the injured employee’s plans to demonstrate his “shooting device,” when they learned this information, whether they had attempted to intervene beforehand, whether they had directed the employee not to engage in this conduct in the company’s parking lot, etc.

As should be evident, the answers to these inquiries also may bear upon the nature of the discipline imposed on the injured employee. For example, if a manager had specifically instructed him not to give the demonstration (at least not on company property) and he did so anyway, a more severe disciplinary response may be appropriate. The underlying issue about which you need to be attuned with respect to the knowledge of the supervisors is a claim for negligent supervision.

Fourth and finally, you may consider whether there is anything else the company should do. At a minimum, you may wish to search the employee’s locker and/or work space to ensure that he has not brought any other “shooting devices” or explosive materials to the worksite. You also may want to use this incident as a “teaching moment,” reminding all of your other employees, either through a written communication or a series of meetings, that guns of any type (home-made or not) are not permitted on company premises, including the company parking lot, and that all employees need to avoid conduct that puts themselves, their fellow employees or members of the public at risk of injury.

Readers’ Responses:

Response # 1: The employer’s first and foremost responsibility is to provide all workers with a safe work environment (including any and all of the employer’s premises, not just the work building). The employee in question has risked the safety of both himself and his co-workers. In this case, the risk was significant as it involved what under the law would be considered a deadly weapon. The employee must be terminated.

Hopefully, the employer has a written policy against weapons and violence in the workplace and can stand on that to support the termination. But, even if they do not have such a written policy, the employee must be terminated for gross misconduct — jeopardizing the workplace safety.

There are separate issues involved in whether a claim for workers’ compensation can be successfully challenged.

Response # 2: Can you fire an employee for stupidity?