Rosenbaum & Rosenbaum, P.C. | June 29, 2022 | Workplace Accidents
The short answer is no, at least by default. In most cases, you cannot sue your employer for failure to provide PPE (this is known as the “exclusivity rule”). But you may very well qualify for compensation under your employer’s workers’ compensation plan. If you suffer a workplace accident, it is typically your employer’s responsibility to provide you with compensation for medical expenses and lost income.
Employers accomplish this by purchasing workers’ compensation insurance, which is designed for exactly this purpose. Lack of adequate PPE is a primary cause of workplace accidents and work-related wrongful deaths.
Who Is Responsible for Buying PPE?
Two critical questions are likely to arise if you undertake a physically hazardous job:
- Is my employer required to provide PPE?
- Who must pay for the PPE if it is required?
According to the U.S. Occupational Safety and Health Administration (OSHA), employers are generally responsible for providing their employees with PPE at the employer’s own expense. If the employee supplies their own PPE, the employer must reimburse the employee.
Construction accidents are perhaps the most common risk of an employer’s failure to provide adequate PPE. The problem is that OSHA does not allow injured employees to file lawsuits over this issue-–in other words, there is no “private right of action.” Instead, OSHA typically issues penalties of its own against companies that fail to comply with its regulations.
Special Covid-19 PPE Requirements
Employers in high-risk occupations naturally have many safety responsibilities, such as providing helmets, safety goggles, fireproofing, etc. During the Covid-19 pandemic, however, additional requirements apply. Your employer must:
- Properly sanitize the workplace;
- Rearrange workplaces and schedules to promote social distancing;
- Provide masks and related PPE (hand sanitizer, for example);
- Requiring the wearing of masks by everyone, including customers;
- Screening for symptoms; and
- Creating contingency plans (for a workplace outbreak, for example).
- Many other requirements apply as well, such as allowing sick employees to remain at home.
Your employer must also comply with new instructions from the Centers for Disease Control and Prevention and other health authorities.
Instances When You Can Sue Your Employer
There are several major exceptions that can allow you to file a lawsuit for a work-related injury caused by inadequate PPE, as described below.:
If Your Employer Wrongfully Denies You Workers’ Compensation Benefits
Normally, you would seek workers’ compensation benefits through administrative channels, not the courts. Nevertheless, you need your employer’s cooperation to file a workers’ compensation claim. If your employer refuses to cooperate, you can petition for redress from the courts.
If your employer dishonestly conceals your injuries and those injuries worsen, you can sue your employer for compensation.
Your Employer Never Purchased Workers’ Compensation Insurance
Workers’ compensation insurance protects employers from distractions caused by litigation. If your employer refuses to purchase workers’ compensation insurance (which refusal is illegal), they sacrifice the immunity from lawsuits that they would otherwise enjoy.
Intentional Misconduct By Your Employee
You can sue your employer for intentional misconduct. Suppose, for example, that you organize union activity in the workplace. Your employer retaliates by deliberately denying you PPE, and you become ill or suffer injury. You can take your employer to court for compensation.
You Are an Independent Contractor, Not an Employee
If the worker is an independent contractor rather than an employee (an electrician you call to fix your wiring, for example), you are almost always responsible for purchasing at least some of your own PPE. To the extent that your employer is responsible for providing it, however, your recourse is to the courts.
If your failure to receive PPE is the result of the negligent or intentional wrongdoing of a third party (not your employer), and you are injured as a result, you might have a personal injury claim against the third party. You would have to prove fault, but you could receive non-economic damages such as pain and suffering.
A classic example of this scenario is a construction project where your employer is a subcontractor, but the general contractor is responsible for providing PPE because of its great expense.
Consult With a Workers’ Compensation/Personal Injury Lawyer
A workers’ compensation/personal injury lawyer can evaluate your claim and advise you of your options. The most important benefits of hiring a lawyer include:
- They are usually in a better position than you to determine the true value of your claim; and
- They can negotiate a higher settlement than you could probably negotiate on your own.
Almost any workers’ compensation or personal injury lawyer will offer you a free, no-obligation case consultation.