In 2005, the Ohio legislature passed a statute addressing when an employee who is injured on the job can recover damages for his or her injuries beyond those provided under the workers' compensation law.  Claims under this statute are known as employer intentional torts.  Generally, an employer is only liable for employer intentional torts where the employer intended to injure the employee.  However, the statute provides that an employer is presumed to have acted with intent to injure, where the employer deliberately removes an "equipment safety guard." 

Recently, in Hewitt v. L.E. Myers Company, the Ohio Supreme Court decided that an employer's failure to make an employee wear gloves and work alone did not create a presumption under the statute that the employer intended to harm the employee.  The Hewitt decision is important because it clarifies how broadly the "equipment safety guard" exception in the statute should be read. 

In Hewitt, an electrical worker failed to use insulated rubber gloves designed to shield workers from electric shock, and was injured when he accidentally touched an energized wire.  The worker claimed that his supervisor told him the safety equipment was not needed, and argued that this constituted a deliberate removal of safety equipment that would permit him to recover under the employer intentional tort statute.  The worker pointed to an Ohio appellate court opinion interpreting "safety guards" to include facemasks worn by workers to prevent exposure to toxic dust.

The Ohio Supreme Court disagreed and endorsed a narrow interpretation of the equipment safety guard exception.  First, equipment safety guard should be a narrow term—not simply any "generic safety-related item."  Instead, equipment safety guard means "a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment."  Therefore protective gloves and breath masks cannot be considered safety guards, as they are not a part of a dangerous piece of equipment that is designed to protect the operator from the equipment.

So under Hewitt, personal safety equipment does not qualify as "equipment safety guards," and it is not enough for machinery to have general safety features for those features to qualify as "equipment safety guards."  Rather, an equipment safety guard appears to be a specific safety device on a machine that protects the operators from a specific danger or point of danger.

The Court also determined that "deliberate removal" of an equipment safety guard requires some action of the employer to circumvent or eliminate a safety guard.  The Court said that failure to train or instruct a worker on safety procedures cannot be deliberate removal of a safety guard.

The Hewitt decision provides more certainty about the limits on the exception contained in the employer intentional tort statute.  Nevertheless, some of the conduct found insufficient to establish the presumption of intent under the statute could still lead to penalties and liability under OSHA and/or the specific safety requirements that are a part of Ohio workers compensation law.  A well-developed safety program remains the best defense against liability for on-the-job injuries.