Extraordinary Workplace Misconduct: Perhaps Firewalking Is Not the Best Team-building Activity…

By Fiona W. Ong - Shawe Rosenthal LLP

June 27, 2022

As reported recently in the New York Times, more than two dozen employees were injured last week during a team-building activity in which they walked over hot coals in their bare feet (?!!!). The Times described that “Ten ambulances, two emergency medical teams and police officers from multiple agencies were deployed to help, according to 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. (Ummmmm….)

Now, I know that employers are looking for creative and engaging ways to build workplace connections and foster team spirit, particularly coming out of the isolation and social distancing of the past two years. But, WHAT WERE THEY THINKING? (Ok, I just had to get that out of the way.) And as an attorney, I immediately started thinking of the potential employer liability and consequences of such an inflammatory idea for a team-building event, resulting in employee injuries.

OSHA Recording and Reporting. First, the Occupational Safety and Health Administration has specific recording and reporting requirements for workplace injuries and illnesses. OSHA requires employers to keep records of “recordable” workplace 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 away from work, restricted work, transfer to another job, or medical treatment beyond first aid
• It involves a significant injury or illness diagnosed by a physician or other licensed healthcare provider
• It involves a needlestick injury or cut from a sharp object that is 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 has been exposed to and is subsequently 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 through April 30. Certain employers are also required to submit this information to OSHA electronically (although some changes are proposed to this electronic reporting requirement).

In addition, employers are required to submit a report to OSHA within eight hours after an employee’s death or 24 hours of the in-patient hospitalization, amputation or loss of an eye by an employee as a result of a work-related incident. Employers may telephone the nearest OSHA Area Office or call the toll-free number (800-321-OSHA). They may also submit an electronic report at OSHA.gov.

But is a team-building injury considered to be work-related? According to OSHA, yes! In a 2009 Interpretation Letter, OSHA stated that an employee’s injury that occurred at an off-site team building event (go-cart accident, in case you were wondering) was work-related, since the employee was required to be there as a condition of employment. The injury  would then need to be evaluated under the criteria listed above to determine if it was reportable and/or recordable.

Workers’ Compensation. Next, is the injury covered by workers’ compensation? Or can the employer be sued? Now, workers’ comp 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 in the course of employment. And recreational or non-work activities might be considered part of the employment relationship under some states’ laws.

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

There is an exception, however, where an employer engages in an intentional tort – which generally means that they intended to injure the employee or that they intentionally created a situation that would likely result in an injury to the employee (again, there are state variations on this standard). Although I’m quite certain that the employer here did not intend to toast their employees’ tootsies, it may be possible that an employee-friendly state court might find that the activity of walking barefoot over hot coals is likely to result in injury…

Now in some states, if the team-building activity is truly voluntary, the employee may not be entitled to workers’ compensation coverage and the employer may not be liable for any injuries to the employee. But that’s not the case in all states. And if the employee engaged in misconduct or horseplay, or got hurt because they were drunk (since alcohol is sometimes served at work-related recreational events), it’s possible that they won’t be entitled to workers’ comp and the employer is not otherwise liable for their injuries.

But all in all, it’s likely best for employers to be thoughtful about their team-building activities – and avoid those those pose a significant risk of injury – or risk of significant injury! Don’t be wrongfooted when choosing a team-building activity or you could end up in the hot seat!