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Following the Rules: Clarification on the Safety Rule Defense to Workers’ Compensation Claims

In general, employees in Virginia are eligible for workers’ compensation benefits regardless of who is to blame for the accident. That means, with few exceptions, the negligence of any party involved in a workers’ compensation case is irrelevant to the award of benefits. Common sense, however, would dictate that if employees aren’t following “the rules” when the accident occurs, then they should not be awarded benefits. Virginia codified this commonsense rule in Virginia Code Section 65.2-306, which provides that compensation will not be awarded to a claimant if the injury is caused by, “[t]he employee’s willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee.”

This rule, while it may seem straightforward, causes a lot of confusion and frustration for employers all over Virginia. In order to successfully utilize the “safety rule” defense, an employer must establish: (1) the rule is reasonable; (2) the rule was known to the employee prior to the accident; (3) the rule was for the benefit of the employee; and (4) the employee was injured while intentionally undertaking the act forbidden by the rule. Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 381 S.E.2d 359 (1989). More plainly, in order to use the safety rule defense, the rule must be reasonable, it must be known by the employee, it must be for the purpose of protecting the employee, and the employee’s injury must have been caused by an intentional failure to follow the rule.

Additionally, it is paramount that the rule is actually enforced by the employer. It cannot be the case that the rule exists but is never abided by or enforced. To utilize the safety rule defense, the employer must create consequences for employees who have failed to follow the rule. This can be as simple as forced compliance or a written warning. If you do not care about your rule, the Virginia Workers’ Compensation Commission won’t care about it either.

In Mouhssine v. Crystal City Laundry, a claimant brought a workers’ compensation claim following a back injury that occurred while lifting. The employer defended the claim on the grounds that the claimant failed to comply with its rule which mandated that employees engaged in lifting activities are required to wear a back brace. It was found that the rule was communicated several times per month and that if supervisors saw employees in violation of the rule, the employees were reminded. As the claimant was found to be in violation of a known safety rule, that is regularly enforced, his claim was barred. Mouhssine v. Crystal City Laundry, 62 Va. App. 65 (2013).

What should you do?

1. Publish all safety rules in a rule book or employee handbook.

—Have a source where the rules are written down. Make sure those publications are distributed to employees. Keep a record of each employees’ receipt of such rule books.

2. Train employees on all safety rules.

—Regularly communicate the rules to your employees. Emphasize the important of safety rules.

3. Have regular reminders of safety rules.

—Put up signs where possible.

4. Create an enforcement system.

—Whether it be a simple verbal reminder, a written warning, or more severe (sent home for the day, suspension, etc.), make sure you have a system to handle violations of the rules. Make sure violations are communicated to employees and then documented in their personnel files.

If you have any questions about this article, or about workers’ compensation in general, contact Sean Mackin (smackin@setlifflaw.com) at 804-377-1268 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

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