Do workers' compensation laws protect industrial hygienists from lawsuits by injured workers?

Abstract

Workers' compensation laws provide injured employees with a swifter, more certain, and less litigious system of compensation than existed under the common law. Although workers' compensation is almost always an injured employee's exclusive remedy against the employer, the employee may bring a common-law tort action against a "third party" who may be liable in whole or in part for the employee's injury. This article investigates whether industrial hygienists are "third parties" and therefore subject to suit by injured employees who claim that industrial hygienists negligently caused their injuries. The author concludes that in most states, where the industrial hygienist and the injured worker are fellow employees, the industrial hygienist shares the employer's immunity from suit. As to the consultant who performs industrial hygiene services as an independent contractor, the author concludes that the employer's nondelegable duty to provide a safe workplace offers industrial hygiene consultants an argument that they share the employer's immunity from suit. Countervailing arguments, however, leave the industrial hygiene consultant vulnerable to negligence claims in many jurisdictions. There is a trend among the states to extend the employer's immunity to those who provide safety and health services to the employer.