While most employees in Nebraska can’t collect workers’ compensation for purely mental injuries, a recent “mass shooting drill” by a misguided employer should serve to remind employers than employees can sue their employers outside of workers’ compensation in some circumstances.

“I tell my clients you can’t just shoot your employees.”

I remember a longtime management defense lawyer telling me that about the liability-limitations imposed by the so-called exclusive remedy provision of workers compensation.

I think the same goes for pretending to shoot your employees. Those employees could be able to skirt workers’ compensation laws and sue their employers for infliction of emotional distress.

There may that kind of case here in Nebraska.

When workers’ compensation isn’t the exclusive remedy for employer stupidity

The Omaha World-Herald reported on Thursday about a mass shooting drill conducted by Catholic Social Services. The drill included a questionable person shooting blank rounds out of a gun in the office. The drill also involved staged causalities who appeared wounded and bloody.

Even the conservative Douglas County attorney called the drill a “bad, bad idea.”

I first wrote about these mass shooting drills in 2019 when I read about a mass-shooting drill at an Indiana school. That drill involved shooting people with paintballs. I wrote that while the physical injuries from being shot with a paint ball would be covered, the mental trauma from being in that drill would not be covered under Nebraska workers’ compensation.

In Nebraska, only first responders as defined by law, are covered by the Nebraska Workers’ Compensation Act for mental trauma injuries. A social worker for a non-profit or a teacher would not be covered under the Act.

But, and maybe I’m burying the lead here, if a workplace injury isn’t covered by workers’ compensation then an employee or their survivors can bring a tort claim. So, if an employee is exposed to mental trauma that isn’t covered under workers’ compensation, the exclusive remedy of workers’ compensation doesn’t bar that claim.

The exclusive remedy of workers’ compensation limits the amount that employees can recover in exchange for not having to prove fault. Employees are limited to having medical bills paid and getting a percentage of their income paid based on how a work injury effects them. In a tort or civil case, employees would have a theoretically unlimited recovery. In railroad injury or FELA cases, where injured workers do have to prove some fault, those recoveries can dwarf what an employee could collect under workers’ compensation.

Tort claims for employee emotional distress claims

Now just because an employee isn’t barred by the exclusive remedy of workers’ compensation from suing their employer, doesn’t mean they automatically have a claim. Employees would still have to show that their employers has a duty to protect them from mental distress, they breached that duty and that the breach of duty was the proximate cause of the mental distress.

I’m not aware of any tort claims that have been brought to address the effects of mass-shooting drills. But based on the reactions to Catholic Social Services mass shooting drill, I would feel somewhat confident about a such a claim surviving a motion to dismiss.

While mass shooting drills gone bad garner attention when it comes to workplace torts, retail clerks are routinely subjected to mental trauma from actual violence. I think these workers should be covered under workers’ compensation for mental trauma. But non-unionized retails clerks lack the political clout of law enforcement. Maybe civil cases will be the sole avenue to address this issue for the foreseeable future.

The benefit of workers’ compensation over tort or civil claim

But civil litigation is risky and more generally more expensive than workers’ compensation. In my experience workers’ compensation, at least in Nebraska, is often a better deal for plaintiff’s than a civil case for a non-catastrophic injury.

The role of unions in preventing emotional distress claims

Another way to regulate workplace safety and (employer stupidity) are unions. Teachers’ unions have pushed back against the kinds of mass-shooting drills done by non-union employers like Catholic Social Services. Unions could be part of the solution for retail worker as well. Recently, workers at Starbucks have won an increasing number of union elections. A Chipotle outlet in Michigan also recently unionized. I hope increased retail worker organizing can protect retail workers for the effects of violence — both physical and mental.