Can your employee sue for an injury sustained while on your premises?
Employees may sue their employer, but only under rare circumstances. A job-related employee injury is usually covered under the employer’s worker’s compensation policy.
Workers’ compensation laws provide a consistent source of employee injury benefits. It’s a no-fault system so employees don’t have to prove that the employer is liable. They need only show that an incident occurred on the job and that an employee injury resulted.
A few exceptions
The Employees Pocket Guide to Connecticut Workers’ Compensation explains the concept quite simply, Worker’s Compensation “…covers almost all employees.” “Almost” is an important definer. Just as with any insurance program, some employees and claims just aren’t covered.
When a worker, employee injury, or the injury circumstances are excluded or not covered under a state’s workers’ compensation statutes, the employee retains the right to sue the employer for lost wages, medical, and other benefits. An employee may sue due to an injury caused by these and other circumstances:
Uncovered Employment Circumstances
1. Domestic workers
State workers’ compensation statutes exclude certain domestic workers from coverage. Massachusetts domestic workers employed in a private home must work at least 16 hours per week to receive workers’ compensation benefits. Connecticut workers must work at least 26 hours per week. Uncovered domestic workers may sue their employers for employee injury benefits.
2. At work but not on the job
If a worker sustains an injury while engaged in non-work activities on their employer’s premises during work hours but, an employer might choose to dispute their benefit entitlement. This is in keeping with Department of Labor “Portal to Portal” guidelines that designate when an employee is considered on the job. An employee may challenge the resulting dispute if their injury occurred on property that was “controlled” by the employer.
To recover damages, a non-working, non covered employee would have to prove the employer was negligent in causing their injuries just as with any liability claim.
Injuries not covered
Negligent infliction of emotional distress
Although they waiver occasionally, courts in both Connecticut and Massachusetts have found that, under most circumstances, emotional distress isn’t compensable as an employee injury. Traditionally, both states support an injured employee’s right to sue for these damages when they are related to a job termination.
Cause of injury not covered
It’s nearly impossible to prove that an employer is guilty of an intentional act. In Massachusetts, if an employee can prove their employer’s deliberate misconduct or an OSHA violation caused an employee injury, the employee may be entitled to sue for additional damages above basic comp benefits.
On the premises during off hours
Workers’ Compensation applies to employees injured while on the job. An injury sustained on the premises during an employee’s off-hours is not considered a compensable employee injury. The injuries and circumstances wouldn’t be covered under workers’ compensation.
One example would be a Mall employee who is injured while shopping with his family during his day off. He or she must recover damages through a premises liability claim or lawsuit.
No workers’ compensation coverage
In some cases, a worker may sue an employer who fails to maintain a worker’s compensation policy to cover an employee injury. Massachusetts maintains a state Workers’ Compensation Trust Fund that provides benefits to injured workers of uninsured employers.
In both states, non-compliant employers are subject to penalties and fines. Exempt and approved self-employed entities aren’t required to have insurance.
If you have questions concerning worker’s compensation or any other commercial coverage, contact us at 1-800-367-2482 or complete our online contact form.