Lex K. Larson, the author of Larson's Workers' Compensation Law (Matthew Bender), was a member of this morning's "Joint WC/OSHA Panel: How Work Injuries and Fatalities Involving OSHA Citations Have the Potential to Turn into Civil Liability Tort Claims Against Employers Under Various State Labor Acts."
Larson noted that, traditionally, intentional acts by an employer that inflict injury on an employee are not barred by the exclusive remedy provisions of workers' compensation laws. During the last 20-25 years, available tort remedies have expanded, despite exclusive remedy provisions, to include injurious acts by employers that do not reach the level of "intentional."
He gave the real-life example of a factory owner who locked the doors of the factory in order to prevent employees from stepping outside during their breaks, with the result that, when fire broke out in the factory, employees were unable to escape, and several died in the fire. The trend among the states is to allow tort recovery in such fact situations pursuant to a "substantially certain" standard. That is, if the employer's acts were "substantially certain" to cause injury, tort recovery by injured employees is not barred by the exclusive remedy rule.
Similarly, he noted another growing exception to the exclusive remedy rule, namely, an employer's intentional violation of OSHA safety regulations. In many jurisdictions, citation by OSHA for such violations is a springboard that allows an injured employee to pursue a tort action against the employer.
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