If you own a business and have employees, your state’s laws probably require your business to have workers’ compensation insurance. If your state’s laws don’t require your business to have workers’ compensation insurance, they may incentivize your business to have workers’ compensation insurance by barring lawsuits for work-related injuries against your business and limiting the business’s liability to the insurance coverage provided by workers’ compensation.
But this lawsuit bar and limitation on liability may not apply if your business was “grossly negligent”—a greater degree of negligence than ordinary negligence—and that gross negligence caused the employee’s injuries.
In most states, workers’ compensation pays medical expenses and lost wages to a worker who was injured or got sick on the job. But workers’ compensation does not cover all of the liability the employer of an injured worker may face following a workplace injury or illness. To insure against additional potential liability, an employer may purchase employers’ liability insurance (ELI) as part of the workers’ compensation insurance package, or as an additional insurance policy.
Most workers’ compensation policies include employers’ liability insurance—but in some states (North Dakota, Ohio, Washington, Wyoming) an employer must purchase ELI separately.
Employers’ liability insurance typically covers the following claims that may be made against the employer of an injured employee:
• Third-Party Over Actions. In this case, another party that was found liable for the employee's injuries may file a lawsuit against the employee’s employer. For example, if one of the employer’s employees was injured while using a piece of equipment or machinery, the employee may sue the manufacturer on a product liability claim—but the manufacturer might then sue the employee’s employer for failing to properly maintain the equipment or machinery.
• Loss of Consortium. The spouse of an injured employee may file a lawsuit against the employee’s employer for their losses related to the spouse’s injury or illness.
• Dual-Capacity Suits. An employee may file a lawsuit against their employer if an item the employer manufactures caused the employee’s injury.
• Consequential Bodily Injury. A consequential bodily injury claim may be made against the employer of an employee who has suffered a workplace injury or illness when a family member of the employee suffers bodily injury caused by the employee's injuries.
• Gross Negligence Claims. If a workplace manager or supervisor instructs an employee to do something the manager or supervisor knows is dangerous and could result in serious injury or death to the employee, that might constitute gross negligence—a greater degree of negligence than ordinary negligence—and workers’ compensation may not cover the injured employee’s claims against the employer.
In Virginia, businesses with more than two employees, including part-time workers, are generally required to have workers' compensation insurance. This insurance provides medical expenses and lost wages to employees who are injured or become ill due to their job. Virginia law limits an employer's liability for work-related injuries to the benefits provided under workers' compensation, which serves to protect employers from most lawsuits by injured employees. However, if an employer is found to be 'grossly negligent,' they may still face lawsuits outside of the workers' compensation system. Gross negligence is a higher degree of carelessness where the employer is aware of a significant risk of injury or death but disregards it. Employers in Virginia can also purchase employers' liability insurance (ELI), which is typically included in workers' compensation policies, to cover additional liabilities such as third-party over actions, loss of consortium, dual-capacity suits, consequential bodily injury, and gross negligence claims. ELI provides protection in situations that are not covered by standard workers' compensation insurance.
