State Snapshot
BASIC RULE
In Florida, workers’ compensation is an employee’s exclusive legal remedy for work-related injuries. Florida Statute § 440.11.
This means that the injured employee cannot sue the employer for negligence (which might lead to monetary damages for such things as pain and suffering). The rule also immunizes co-employees from tort lawsuits. Claimants subject to the exclusivity rule are limited to obtaining medical, wage-loss, and death benefits.
INJURIES COVERED BY THE WORKERS’ COMPENSATION ACT
An injury is covered by the WCA if
- An employer-employee relationship exists;
- The injury arises out of and in the course of employment; and
- The employer secured workers’ compensation coverage.
INTENTIONAL INJURY EXCEPTION
The exclusive remedy rule does not apply to injuries that the employer intentionally inflicted. To show that this exception applies to her case, an employee must prove by clear and convincing evidence that the employer:
- Deliberately intended to cause injury; or
- Engaged in conduct that was virtually certain to result in injury or death.
To establish intent under the virtual certainty test, the employee generally has to show that:
- The employer knew the conduct was virtually certain to result in injury or death;
- The employee was unaware of the danger because it was concealed or not apparent; and
- The employer deliberately concealed or misrepresented the danger.
Establishing intent under either test is very difficult. It is not enough to show negligence, gross negligence, or even violation of OSHA safety rules. See related article.
THIRD PARTY LAWSUITS
The exclusive remedy rule does not apply to lawsuits against third parties. For example, if an employee is injured by defective equipment manufactured by another company, the employee may still sue that other company.
EMPLOYER FAILS TO SECURE COVERAGE
If the employer has not secured workers’ compensation coverage, an injured employee may file a workers’ compensation claim or bring a civil suit against his or her employer.
SEXUAL HARASSMENT
The exclusivity rule does not apply to sexual harassment claims because sexual harassment is not a risk inherent in a typical workplace environment. The exclusive remedy rule does not bar tort lawsuits where the damages flow from sexual harassment or battery rather than from a standard physical industrial accident.
THE UNRELATED WORKS DOCTRINE – CO-EMPLOYEES
This exception to the exclusive remedy rule applies only when the injured employee sues a co-employee in tort and the two employees are assigned to “unrelated works.” If employees are in different departments and not working on the same project or mission, the injured party may sue the co-employee for negligence.
GROSS NEGLIGENCE – CO-EMPLOYEES
This is another exception to the exclusive remedy rule that applies only when the injured employee sues a co-employee in tort. The injured employee may sue the co-employee if the co-employee’s actions constitute:
- Gross Negligence: A conscious and voluntary disregard of the need to use reasonable care;
- Willful and Wanton Disregard: Intentional misconduct; or
- Unprovoked Physical Aggression: Assault or battery by a coworker.
RECENT CASES
Southern-Owners Ins. Co. v. Farrera, No. 23-12161 (11th Cir. 02/06/25, unpublished)
A worker was injured after falling through a roof while working for a subcontractor on a project managed by a contractor. He sued the contractor, alleging gross negligence, for failing to provide safety equipment. The policy between the subcontractor and contractor explicitly excluded “temporary workers” from the definition of “employee” for purposes of workers’ compensation. The court found the worker was a “temporary worker” because he was hired to meet short-term workload conditions following Hurricane Michael and had only worked for three weeks. Thus, the workers’ compensation act did not apply to him and he could sue the employer for negligence.
M.B. v. Wendy’s Int’l, No. 8:24-cv-1116-TPB-TGW (M.D. Fla. 09/05/25)
A 17-year-old worked at a Wendy’s in Lutz, Florida. She said a 25-year-old co-worker attempted to kiss her. She reported this, but the company allegedly took no action. She claimed the co-worker eventually sexually assaulted her in a freezer. She sued the company for negligent supervision, retention, and training. The company asked the court to throw out the case, arguing that the employee’s only remedy was workers’ compensation. The court disagreed, noting that the exclusive remedy rule does not apply to sexual harassment claims. Because the employee’s claims were rooted in sexual harassment and battery, the exclusivity rule did not apply and she could proceed with her negligence claims against Wendy’s.
EXCLUSIVITY RULE IN NEIGHBORING STATES
Alabama
