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Most state workers’ compensation regulations provide an intentional tort exception for employers' workers’ compensation immunity. A Louisiana district court recently rejected a plaintiffs’ effort to trigger this intentional tort exception to workers’ compensation immunity by citing an OSHA “willful” violation as proof that their employer consciously desired that plaintiffs’ suffer their alleged injuries. In the case at issue, plaintiffs were overcome by fumes when they were ordered to clean a tank rail car that contained hazardous chemicals. Their employer was cited for OSHA violations and several of those violations fell into the “willful” category. The court found that these allegations insufficient to meet Louisiana’s “extremely high” standard necessary to avoid the workers’ compensation bar. Hernandez v. Dedicated TCS, LLC (E.D. La. 3/3/17).
Last year, several courts in Washington and Kentucky had similarly ruled that state workers’ compensation laws provided the exclusive remedy for employees injured in the course of their employment notwithstanding OSHA willful violations. But a U.S. District Court in Idaho recently ruled that employees could pursue tort claims after they were ordered to retrieve radioactive plates without proper protection gear in violation of applicable OSHA regulations.