My employer was negligent, can I sue him/her?

We often get the question, “Can I sue my employer for negligence?” Unfortunately, if you are injured in the course of employment, the answer almost always, “No.” Vermont’s Employers’ Liability and Workers’ Compensation Act makes workers’ compensation the exclusive remedy for employees injured in the course of employment. In some ways this is a good thing. It means that the employee gets benefits for an injury regardless of how the injury occurred, and those benefits are not dependent on whether or not the employer was negligent in any way. On the other hand, it also means that if the employer was negligent, it can’t be sued for its negligence.

The Vermont Supreme Court has interpreted this immunity broadly. Basically, it has decided that any entity that falls within the Workers’ Compensation Act’s statutory definition of “employer” enjoys immunity from tort actions, including those based on negligence. Because of this, the Vermont Supreme Court has found many entities to be “statutory employers” — and therefore immune — that might not seem like employers at all. The employees of subcontractors lose out because of this, as they cannot sue a general contractor for the general contractor’s negligence, even though there is no direct employment relationship between the two. On the other hand, the fact that a general contractor is a statutory employer can be useful for workers at time. If the worker were employed by a subcontractor to do the general contractor’s work, but the subcontractor does not maintain workers’ compensation insurance, the worker could claim workers’ compensation benefits from the general contractor because it is an employer under the Act.

There are only two exceptions to the exclusive remedy rule written into the statute. The first is if the employer does not maintain workers’ compensation insurance to cover its employees’ work-place injuries. In that case, the employee can either bring a claim for workers’ compensation benefits or sue the employer for negligence. If the employee sues for negligence, the employer is barred from raising most of its usual defenses. The second is for the gross negligence or willful misconduct of a safety committee.  However, in 2008, the Vermont Supreme Court effectively wrote this second exception out of the Act. So, as long as your employer has workers’ compensation insurance, the chances are you will not be able to sue it for negligence.