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Workplace accidents can result in serious injuries or death. Workers’ compensation insurance is required by Florida law for all employers who have four or more employees working for their company. Construction companies in Florida are required to provide this insurance for every employee, no matter how many employees are currently employed. This coverage is designed to provide financial compensation that covers injuries suffered by an employee while on the job. The compensation may cover medical costs, lost wages, other recovery-related costs, as well as funeral and burial costs in the tragic event of an employee's death at work. Employers who abide by state law and acquire either private or state workers’ compensation insurance, or self-insure, are given strong protection against their employees suing them and the company itself having to cover expenses from workplace injuries. This immunity to civil lawsuits has incredibly few exceptions, but when met, those exceptions can disrupt the course of business and cause serious harm to the company.

Historically, the only exception to workers’ compensation immunity under Florida workers’ compensation law was when an employer failed to secure payment as required by law for the injured employee. Essentially, if an employer who has workers’ compensation insurance fails to process a claim in a timely manner, delaying payment of compensation, the injured employee may file a lawsuit to claim damages.

Intentional Tort Immunity

In 2000, the Florida Supreme Court held that an exception to workers’ compensation immunity existed for intentional torts committed by an employer in Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000). Now, an injured employee could satisfy the intentional tort exception by either demonstrating that their employer intended to injure them or that their employer engaged in conduct that was objectively certain to result in injury. Turner allowed the Florida Supreme Court to craft broad intentional tort exceptions to workers’ compensation immunity. The Florida legislature reacted to Turner in 2003 by enacting an amendment to F.S. §440.11(1) that created a much narrower statutory intentional tort exception to workers’ compensation immunity. In doing so, the legislature signaled its intent for employers who comply with the law to maintain workers’ compensation immunity in all but the most outrageous cases.

Because employers are expected to keep the workplace safe for all employees and must meet all Occupational Safety and Health Administration (OSHA) standards, when an employer does not meet these standards or purposefully disregards the standards which places their employees in danger, they are potentially subject to an exception to workers’ compensation immunity. The amended Florida Statute, Section 440.11(1)(b), provides an exception to an employer’s immunity from civil lawsuits when an employer has been found to commit an intentional tort that directly results in the injury or death of an employee. The employee can then file a civil lawsuit directly against the employer but must also overcome a significant burden of proof to proceed.

The Florida courts tend to apply a stringent standard when hearing exceptions to workers’ compensation immunity. Employees have many elements to prove to overcome employer immunity. The employee must prove their employer participated in intentional behavior they knew was going to result in the injury or death of the employee. Actual knowledge must be present. There must be clear and convincing evidence the employer had previous knowledge of a known danger, based on prior or similar accidents, or explicit warnings that identified the danger that was certain to harm or kill the employee. The employee must also prove they were unaware of the risk and that their employer purposefully misrepresented the danger or concealed the danger from the employee preventing the employee from exercising sound judgment as to whether or not to perform the work. Florida employers may also be subject to claims of vicarious liability for gross negligence if a coworker is found to be the cause of the employee's injury or death. These cases are incredibly fact-specific and require a deep understanding of legal theory for all elements to be met.

As new legislation related to the COVID-19 pandemic has been enacted, workers’ compensation immunity is again being tested. On March 29, 2021, Governor DeSantis signed Florida Statute Section 768.38 into law which shields healthcare providers, businesses, and government agencies from COVID-19 related lawsuits. The law is designed to protect these entities from civil liability and to limit the number of lawsuits related to COVID-19 that have backlogged the courts for months. The law only allows recovery if the person who contracted COVID-19 can prove a business was negligent in their care with clear and convincing evidence. If the business made a good faith effort to comply with all CDC and government standards related to preventing their employees and customers from contracting the virus, then they are immune from civil liability. The new law fits into Florida’s workers’ compensation laws, as an employee would have the same burden of proof to show that their employer was negligent or deliberate in their actions and intended to injure the employee in order for an exception to workers’ compensation immunity to apply.