‘Psychological injury’ bill could create double remedy for workers

A bill that would allow Rhode Island workers to sue their employers for bullying or psychological injuries in the workplace could create a double remedy, as the state also permits employees to file workers compensation claims for mental injuries suffered on the job.

S.B. 959, introduced April 7 and recommended for approval by a Senate committee two days later, aims to address workplace “psychological safety” by providing definitions of bullying and guidelines for anti-bullying training and investigations. The bill was sent to be scheduled on the Senate calendar.

The bill outlines potential damages, including “the greater of all actual damages” or $5,000 for each violation, lost wages, attorneys fees and punitive damages — describing such as “legal relief and remedies for employees harmed psychologically, emotionally, physically, professionally, or economically by exposure to an unsafe, toxic work environment, including any subsequent damages to make employees whole.”

Workers compensation experts say the proposed language could create confusion, as Rhode Island is a so-called “mental-mental” state, providing workers an opportunity to file for benefits if they suffer a mental injury at work without a physical component to their claim.

S.B. 959 makes no mention of workers comp.

Brian Allen, Salt Lake City-based vice president of government affairs for Enlyte LLC, said that as the bill is written, a worker could pursue both workers comp and a civil action — just as one could sue if a workplace injury is the result of negligence under many state statutes.

This exclusive-remedy provision generally encourages employers to maintain safe workplaces to avoid lawsuits over negligence.

The issue with actions that cause mental injuries is that they are often subjective, Mr. Allen said.

An event “that would trigger someone to want to file a claim is going to vary so much depending on the person’s background, their history, their culture. … There are so many things that will influence what might be perceived as offensive,” he said.

Mental injury causation is subject to interpretation, Mr. Allen said. “If an employer is putting pressure on an employee to perform, they might see that as harassment,” he said.

Greg McKenna, Rolling Meadows, Illinois-based national practice leader for the public sector at Gallagher Bassett Services Inc., said the bill aligns with Rhode Island’s approach to workplace grievances.

The bill allows civil actions against employers for certain workplace conduct, he said.

“Which is an extension of that same employee’s right to file a civil action if they were discriminated against or they were exposed to a hostile environment through the intentional acts of the workplace, and that may be failure to control behavior,” he said. “Certainty, this is an expansion of the worker’s ability to pursue civil actions for those wrongs.”

The bill also outlines how an employer could create an affirmative defense to limit damages for psychological abuse by showing that it took “all steps” to “acknowledge, monitor, prevent, discourage, and adequately address the issues and complaints surrounding allegations of psychological abuse and exercised reasonable care to prevent and promptly correct any violation.”

Debra Falzoi, Westboro, Massachusetts-based executive director of advocacy group End Workplace Abuse and a lobbyist who co-authored the bill, acknowledged the workers comp remedy in Rhode Island.

“There is an avenue, but our bill doesn’t require health harm for a legal claim, so that employers will be incentivized to create psychologically safe work environments and address reports of psychological abuse,” she wrote in an email. “We don’t want to wait until an employee has suffered injury for an employee to have a legal claim since workplace abuse may not harm their health but may harm their career opportunities.”