Download Horseplay Full Movie
Georgina Garding
February 9, 2009
Mr. Joe Winkelman
Regional Contractors Alliance, LLC
BP Whiting Business Unit
2815 Indianapolis Boulevard Mail Code 002
Whiting, IN 46394
Dear Mr. Winkelman:
Thank you for your December 2, 2008, letter to the Occupational Safety and Health Administration (OSHA) regarding the Recordkeeping regulation found at 29 CFR Part 1904. Specifically, you requested guidance from OSHA on a case regarding "horseplay."
Scenario: In your letter, you describe an instance where two of your supervisors had completed their work for the day and had entered the change trailer to change clothes and proceed home. There was some bantering back and forth concerning how to beat the traffic at shift's end. The discussion escalated into a physical confrontation where one supervisor allegedly pulled a knife and struck the other in the right bicep, causing a laceration that required sutures to close.
Issue: You have asked OSHA to endorse your contention that, because the work environment did not contribute to the "horseplay gone badly," as you described the situation, the injury was not work-related and thus was non-recordable under OSHA regulations.
Response: Under 29 CFR Subpart C, "Recordkeeping Forms and Recording Criteria," an injury must be recorded if it is work-related, is a new case, and meets one or more of the general recording criteria (such as requiring medical treatment beyond first aid). See 29 CFR 1904.4(a). An injury is presumed to be work-related if it results from an event occurring in the work environment, unless an enumerated exception to this geographic presumption applies. See 29 CFR 1904.5(a). The work environment includes any location where one or more employees are working or are present as a condition of their employment. See 29 CFR 1904.5(b)(1). We assume that the supervisors were in the change trailer as a part of their work or as a condition of their employment. If our assumption is correct, the injury resulted from an event (the altercation between the two supervisors) occurring in the work environment and was thus work-related. When a work-related injury requires treatment beyond first aid, it is recordable unless it falls within one of the 1904.5(b)(2) exceptions to the geographic presumption.
Violence in the workplace does not generally qualify as an exception. OSHA's Frequently Asked Question 5-2 (found at ) provides guidance on this issue:
Furthermore, the geographic presumption (that is, an injury is work-related if it occurs in the work environment) covers cases in which an injury or illness results from activities that occur at work but that are not directly productive, such as horseplay. See the preamble to the final rule (66 Fed. Reg. 5916, 5929 (Jan. 19, 2001)).
Applying these principles to your situation, it is OSHA's position that the injury was work-related and required medical treatment beyond first aid. This is so whether the incident leading to the injury is characterized as horseplay or as workplace violence, neither of which is covered by any exception to the geographic presumption. Therefore, the injury is recordable.
Both the Note to Subpart A of the regulation (29 CFR 1904.0) and the Overview to OSHA Form 300 ( -osha300form1-1-04.pdf) expressly state that recording a case does not indicate that an employer or employee was at fault or that an OSHA standard was violated. In addition, OSHA recognizes that injury and illness rates do not necessarily indicate an employer's lack of interest in safety and health. Recording a case indicates only three things: (1) that an injury or illness has occurred; (2) that the employer has determined that the case is work-related (using OSHA's definition of that term); and (3) that the case is non-minor, i.e., that it meets one or more of the OSHA injury and illness recording criteria. See 66 Fed. Reg. at 5933.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. In addition, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at
Sincerely,
Keith Goddard, Director
Directorate of Evaluation and Analysis
Employers are understandably frustrated when an employee receives benefits for an injury incurred on a break or while engaged in horseplay. Conversely, employees expect employers to accept the fact that everyone takes mini breaks during the workday to refresh and renew concentration and energy. The nature and length of a departure from duties will ultimately make a huge difference in whether an injury is compensable OT mot.
Employers who want to increase their protection against injury claims from horseplay can issue clear Written directives banning horseplay; where such a rule exists and is clearly communicated to employees, it can serve as a defense against horseplay injuries.
Missouri law states that injuries resulting from a work-related task will be eligible for compensation; whereas, those sustained in horseplay may not be. Employers and insurance companies, while investigating work-related injuries, always check whether any horseplay was involved among the employees which resulted in the injuries being cited for compensation claim.
Each of these types of cases will be decided based on the totality and degree of these elements such as whether it was common and accepted to engage in certain types of horseplay, whether the horseplay would be characteristic of the work, and if the extent the deviation was substantial and effectively constitutes abandonment of the job.
The answer is surely that it depends. What was your role in the horseplay? Believe it or not, the law specifically addresses injury claims involving horseplay or skylarking on the part of fellow employees. According to NJSA 34:15-7.1, it matters if you instigated or took part in the activity.
In a recent panel decision, the WCAB upheld the horseplay defense under Labor Code section 3600(a)(2). (Clevidence v. WCAB 11 WCAB Rptr 11,350, see also Hodges v WCAB (1978) 82 CA3d 894). As you know, Labor Code 3600(a)(2) requires that the employee is performing a service growing out of and incidental to his or her employment and is acting within the course of his or her employment. In this case the applicant was a warehouse stocker who got on a bike of a co-employee. The applicant lost his balance while riding the bike and was taken to a nearby hospital by ambulance. Fortunately for the employer, the applicant agreed at trial that riding a bicycle was an unsafe activity and that his employer did not condone riding a bicycle at work. The applicant tried to connect riding the bicycle as outside the horseplay doctrine because the employer condoned the storage of bicycles on their premises. The court rejected this argument.
Simply put, injuries to the horseplay instigator or to a willing participant are not compensable so long as the horseplay is not condoned by the employer. (Houston v. WCAB, (W/D-1980); 45 CCC 148)
In our practice, most of the examples of horseplay relate to riding bikes, motorcycles, skateboards or acrobatic activities. However horseplay can relate to pushing, shoving and even dancing activities. However, if the employer condones the action, it may be deemed an industrial action. In one case where the employer allowed dancing, the case was found to be industrial. Consequently, while this case may seem to state the obvious, it should serve as an important reminder of some of the AOE/COE issues we face that need to be handled correctly.
The important fact that needs to be stressed is that the employer does not condone the horseplay. Where the employer allows it, injuries resulting from horseplay will most likely be found to be work related. It is important to make sure employers know they need to specifically disallow and/or prohibit such activities. Should an employer allow the activities to occur, the courts will likely find that is the equivalent to condoning the activities.
A plaintiff who decides to pursue a personal injury claim against a negligent employer after suffering a horseplay-related injury should expect to bear some liability for the damages. In states that follow comparative negligence laws, a plaintiff will lose a portion of his or her recovery equal to his or her degree of fault for the damages. If a judge determines an employee is 40% at fault due to his or her horseplay, the employee would lose 40% of the case award but still qualify for recovery. However, in states that follow contributory negligence laws like Alabama, any plaintiff negligence completely bars recovery.
Avoid horseplay to instill a safe working environment. Horseplay may sound fun but it can lead to low work productivity, compromised working environment and even serious work injuries which can be potentially fatal in some cases. Every year hundreds of injuries are reported in the United States alone due to pranks pulled at work. Some states have laws against horseplay or prank injuries that could result in criminal prosecution. Whether or not your state has such laws, it is imperative that you maintain a horseplay-free environment not only for better work productivity but also to ensure the safety of your employees.
Take measures to progressively discipline employees who do not follow your safety policies. The best way to promote a safe and cordial working environment is by offering training and disciplining the employees who may be compromising the integrity of the workplace by being involved in horseplay. You should take appropriate disciplinary action for those who do not follow the safety policies, and be consistent in the application of the discipline.
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