Having an Eclipse Viewing for Your Employees? Workers Compensation Considerations for Employers
Nebraska, particularly Central Nebraska, has become a focal point for the viewing of the upcoming eclipse on August 21, 2017. Many employers, including our office, are offering the opportunity for employees to view the eclipse. Often times these viewings will take the form of a party during work hours with employers providing glasses, food, and an area where employees can view the eclipse as it will occur during the normal workday.
One of our very astute clients who is an employer in Nebraska recently raised the question of whether there could potentially be workers’ compensation liability under Nebraska law as related to eye injuries arising out of the eclipse. Our answer “it depends on how this event is facilitated.” Below we provide the relevant law and some recommendations to avoid any potential claims and to facilitate the viewing event.
The compensability of eye injuries which occur during such an event invokes the rules applicable to recreational/social events. The Nebraska Supreme Court has held that recreational activities are within the course of employment when they occur on the premises during a recreational period as a regular instant of the employment or the employer by expressly or impliedly requiring participation or by making the activity part of the services of an employee, brings the activity within the orbit of the employment, or the employer derives substantial direct benefit from the activity beyond intangible value of improvement in employee health and morale that is common to all kinds of recreation social life. Jacobitz v. Aurora Coop, 291 Neb. 394(2015).
The reality is that Nebraska law on recreational activities has not been incredibly clear throughout the years. However, we offer employers a few tips in light of the case-law. First, do not make, either expressly or through implication, eclipse viewing mandatory. If it’s truly a recreational event, you should let your employees know that they are free to participate but their attendance is not required nor necessary.
Second, you should stress to the employees that if they are going to be viewing the eclipse either on company time or during a company sponsored recreational event, the employees must utilize proper eye wear and under no circumstances should they attempt to view the eclipse without proper eye wear. This gets to an issue outside of the “recreational use standard” – namely the willful disregard of a safety rule/willful negligence. Typically, to be able to allege the defense of willful negligence, the employer must prove that the employer has a reasonable rule in effect that is designed to protect the safety of the employee, the employee has been made aware of the rule, has an idea of the danger involved in violation of the rule, and the rule is enforced by the employer. If there will be company supervisors present, we recommend that they make the aware that failure to wear protective eye wear will result in injury, that no one may view the eclipse as part of the event without protective eye wear, and that the employer monitor the employees and enforce such a rule regarding eye wear.
Finally, you should stress that the event is being provided for the employees’ benefit event and simply to give employees a chance to experience a rare event and enjoy some comradery with co-employees while doing so.
Baylor Evnen wishes you a great and safe viewing experience. Further, should the eclipse portend the end of the world as posited by some sources, Baylor Evnen workers compensation clients may disregard any invoices for services due upon the actual occurrence of the apocalypse.
For questions regarding the applicability of the Nebraska Workers’ Compensation Act in recreational activities and/or the apocalypse, please don’t hesitate to contact Nebraska Workers’ Compensation attorneys Dallas Jones or Paul Barta at 402.475.1075.