In 2014 Tennessee passed the Healthy Workplace Act (HWA). Also known as the Anti-Bullying Law, when originally passed the HWA applied only to public employers.
The HWA prohibits “Abusive Conduct” which is defined as follows:
“acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment such as: (A) repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) verbal, nonverbal, or physical conduct of a threatening , intimidating, or humiliating nature in the workplace;or (C) the sabotage or undermining of an employee’s work performance in the workplace.” TCA 50-1-502
Unlike harassment or discrimination laws, the HWA prohibits “Abusive Conduct” even though the conduct is not based on a protected class or activity.
On April 23, 2019 Governor Lee signed a bill expanding the HWA to private employers. The expansion took effect that day. So what should private employers do in light of this significant development?
First, adopt a policy in accordance with the HWA. The HWA provides that if an employer adopts the model policy created by TACIR, or adopts a policy that : 1. Assists employers in recognizing and responding to Abusive Conduct in the workplace; and 2. Prevents retaliation against any employee who has reported Abusive Conduct in the workplace the employer is immune from suit for any employee’s conduct that results in negligent or intentional infliction of mental anguish. The immunity does not extend to any employee who engages in Abusive Conduct.
The TACIR model policy can be found on pages 13-17 of this link https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%204HealthyWorkplace.pdf .
Will an existing anti- harassment policy comply with the HWA? If the policy only prohibits harassment based on a protected class, as most all do, it will not.
Employers should not delay in adopting a policy that complies with the HWA to take advantage of the immunity that the Act offers. The failure to do so could prove to be costly in the future.