Many human resources professionals are also responsible for risk management in their organizations. Today’s reader is faced with one of those liability situations.
Hi Sharlyn! We’re a small, but rapidly growing company. We realize the need to have an HR department. I’m new to the HR role, have taken some seminars, and have a general idea of what needs to be done.
I’ve run into a situation and could use some help. We have a family member of an employee that tends to loiter in our warehouse unnecessarily for lengthy periods of time, occasionally with their children. No other spouses do this and we’re worried about a possible injury which we’re afraid would be the ‘fault’ of our company.
I’m hoping maybe you have some insight on how to limit access to our warehouse for non-employees and furthermore, if you know what our liability would be for a non-employee injured in our facility. Thank you in advance for any assistance you can offer!
Liability matters are very tricky. There are so many nuances, it would be impossible to give a definitive answer. But to help offer some insight, I reached out to Daniel A. Kaplan, a partner with the firm Foley & Lardner LLP. His practice focuses on safety and health related matters.
Dan, let’s start by identifying some of the key issues. Because this situation involves the spouse/family of an employee, is this a human resources issue? Or because the people involved aren’t employees, is it more of a general liability issue? Maybe it’s both?
[Dan] I think it is both. It is an HR issue whenever the company is asked to engage in a matter that could affect employees. Since this involves an employee’s spouse and family, whatever is done is likely to have an ‘impact’ or possibly strike an emotion or nerve with the employee, so it is an HR issue.
However, it is also a general liability issue. Because the spouse and family are not employees, if one were to be injured it would not be covered by the worker’s compensation act applicable to employee injuries. As such, it would likely have to be covered by the company’s general liability policy, and would be concerned with general liability issues.
Obviously, the company is concerned about safety. Given what we know about this situation, is safety a state or federal matter?
[Dan] Safety is, again, both – a state and federal matter. Safety as it relates to employees typically falls under the Occupational Safety and Health Act, which is a federal law. However, many states have their own Occupation and Safety Health law which is used to take the place of the federal law pursuant to an agreement with the Occupational Safety and Health Administration (OSHA). Either way, these safety laws are for employees and not family members. But, being concerned about safety is appropriate and being concerned about non-employee safety in the company’s workplace or business is very important.
If someone did get hurt, is this a potential liability situation?
[Dan] Absolutely. If an employer was negligent in allowing non-employees in unsafe areas or conditions, if those persons were hurt, they likely may attempt to maintain an action against the employer for negligence. Most commercial general liability insurance policies are intended to cover these sort of situations as well.
Should companies have some sort of policy in place about friends or family members visiting during work hours? Is the company safe if they just restrict non-employees from potentially harmful areas?
[Dan] It is a best practice to have a policy in place that restricts non-employees from work areas and the workplace. This is especially true where the work area is not an office environment. Many companies also restrict times (such as over the lunch hour) for such visits as well, though this is obviously a less restrictive limitation that may still allow for some exposure to the company.
The company is likely safest if it restricts non-employees from the workplace or workplace areas that may have hazards or could potentially lead to injury.
Let’s say hypothetically that the company does have a policy in place AND they’ve asked the employee to deal with the family loitering situation. But it still exists. What’s a reasonable way to escalate it? I mean, no one wants to write an employee up for their family.
[Dan] This is a difficult situation. Usually a sit-down discussion with the employee and human resources to explain the reason for the rules and the concerns (family safety being paramount) is typically sufficient. If that doesn’t work, then emphasize the policy or rule that restricts non-employee access and inform the employee that it simply would not be fair to allow him / her to violate a rule that everyone else is respecting. Accordingly, he / she would have to be subject to discipline like everyone else (including the human resources) for any violation of the rule.
Where can someone go to get more information about liability matters (i.e. insurance company, OSHA, etc.)?
[Dan] Insurance agents and brokers are a very good resource for addressing and identifying policies intended to minimize risk. That includes recommendations or concerns that might arise under a general commercial liability policy.
With respect to addressing hazards and risks in relation to employee safety – OSHA is a very good source, and their on-line web page (www.osha.gov) contains a wealth of information, which is typically easily found through their search engine on the site.
My thanks to Dan for sharing his expertise. If you want to learn more, check out the Foley & Lardner blogs. I know how challenging this situation can be. I always wanted to be cool about allowing visitors but then I never wanted anyone to be put in harm’s way.3