"I was hurt on my job. My boss makes me climb unsafe scaffolding and I have to use my hands operating machines that have no safety/shut off switches. Can I sue my employer?"
We hear this tale frequently. The assumption that many people have: If the worker is hurt in an unsafe workplace, surely the employer will answer for its actions in court. This is not true in Virginia.
A worker may not bring suit against her employer, even if the employer is negligent or grossly negligent, maintains an unsafe workplace, or asks employees to perform unsafe acts while working. Virginia statutes and court decisions do not impose any greater duty on an employer when injuries occur in an "unsafe workplace".
If a worker is injured "in the course of" her employment and the injury "arises out of" her employment, her sole remedy is through the Virginia Workers' Compensation Act. "In the course of" means the worker is where she is supposed to be and injured at a time when she is performing assigned work duties that benefit her employer. For example, her employer may tell everyone in the office that there is a health fair taking place away from the workplace, and "strongly" encourage everyone to attend, even paying for the hour away from the office at the fair. But if the employee trips and falls at the health fair and is injured, that may not be "in the course of" the employee's work.
"Arising out of" means that the injury occurred in an activity creating a risk peculiar to the workplace. A nurse at the hospital walking down the hall may fall and injure herself, but if there is no liquid or other slippery substance identified at the site of the fall or a defect in the floor is not present, then her injury may not have "arisen out of" her employment. The same is true of injuries from a fall walking up or down steps or stairs which are in good repair, and of normal structure. Such events do not "arise out of" the employment because they are viewed by our law as events that could have happened in spite of the employment.
To protect her rights under the Virginia Workers' Compensation Act, a worker must file a claim for benefits with the Virginia Workers' Compensation Commission, or have an award entered by that Commission, within two years from the date of injury. Payment of wage loss or medical bills by the employer or its insurance company, without more, will, as a general rule, not protect the injured worker's workers' compensation rights once two years have passed.
Handling of work-related injuries is a complex part of Virginia law. An injured worker is best advised to seek professional advice.