EMPLOYMENT INTENTIONAL TORT
CLAIMS AGAINST YOUR COMPANY
IS YOUR BUSINESS COVERED?
HAS THE OHIO LEGISLATURE MADE IT EASIER OR MORE DIFFICULT FOR AN EMPLOYEE TO SUE HIS/HER EMPLOYER FOR AN EMPLOYMENT INTENTIONAL TORT?
Through House Bill 498 ("H.B. 498"), The Ohio General Assembly has again revised the Employment Intentional Tort law in Ohio. The new statute took effect on April 7, 2005 and replaces the prior Ohio Revised Code § 2745.01. The General Assembly also repealed former Ohio Revised Code § 2305.112.
As most readers know, Ohio has a state run workers compensation system. Despite that, the law in Ohio over the years has still permitted an additional and separate claim over and above workers compensation to be made against employers for injuries occurring during the course of employment. This is the Employment Intentional Tort claim. Although these claims occur during employment, an Employment Intentional Tort is not compensable through the Ohio Workers Compensation program and must be protected against through private insurance.
Under the new law, an Ohio employee may still make a claim for an Employment Intentional Tort, in addition to any recovery under Ohio's Workers Compensation system.
Also as with the prior law, an employee in an Employment Intentional Tort case must establish that his/her employer either (1) intended to injure the employee; or (2) acted with the belief that injury to the employee was substantially certain to occur.
However, under the new law the definition of "substantially certain" has been narrowed to include only when an "employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition or death." This is a new and higher standard of culpability against employers than existed under the prior law.
Therefore, it would seem, at first blush, that it will be much more difficult for an employee to prove an intentional tort then it was under the prior law. Unfortunately, this is not necessarily true because of other provisions in the new statute. The new statute states that any injury to an employee that results from the "deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance" will create a rebuttable presumption against the employer that the employer intended that injury.
So, under the new law there appears to only be a need for the intentional act of removing a safety device or a deliberate statement that misrepresents the true state of toxic or hazardous substances. If the removal of that guard or the failure to provide accurate information on those toxic or hazardous substances would have prevented the injury, then liability would appear to arise. There is no need for intent, recklessness or even negligence as to the specific injury or the specific employee. Rather, all that is needed is the deliberate removal or deliberate misrepresentation in order for there to arise a presumption that the employer intended the injury.
This appears to be much easier standard for the employee than under prior law. For instance, if an employee is injured on a machine and a guard that had been removed would have prevented that injury, then there is a presumption under the new law that the employer intended to cause that injury and is liable. The new statute makes no mention of possible defenses to that presumption, such as if: (1) the employee knew of the danger; (2) the employee had other safety means available and failed to use them; (3) the employee was performing a task that had not actually been directed by the employer or part of that employee's understood duties; and (4) the employer had no prior instances of injury on that same or similar piece of machinery. Certainly, each of those factors and how the statute works to apply to them will need to be addressed through the courts before there can be any certainty about the outcome.
What is certain, is that insurance coverage for Employment Intentional Torts is even more important to businesses now than it was under prior law. When reviewing business coverage we recommend personal and in depth discussion with an insurance agent or insurance counsel. In specifically addressing coverage for Employment Intentional Torts, be sure to look for language that provides both indemnification and defense coverage for claims that are "substantially certain" to occur. Policy language that provides defense and indemnity for "employment intentional torts as defined under current law" may also be an acceptable provision. However, even when this acceptable language is present, there must be careful consideration of all "exclusions" in the policy as it is common for the coverage to be taken away through "exclusions" even through it may first designated as a covered claim.
