When Can You Sue Outside of Workers’ Comp in Georgia?
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In four situations: a third party caused the injury; the employer or the work is outside the Workers’ Compensation Act, as with an employer that “has regularly in service less than three employees in the same business within this state” (O.C.G.A. § 34-9-2(a)(2)); the injury is not one the Act covers, such as an attack by a third person “for reasons personal to such employee” (§ 34-9-1(4)); or the employer agreed in writing to additional remedies (§ 34-9-11(a)). An intentional wrong by the employer does not, by itself, open a lawsuit for a covered injury.
Exceptions at a glance
| Situation | Effect | Source |
|---|---|---|
| A third party (not the employer or a co-employee) caused the injury | Tort claim against that party, alongside benefits | § 34-9-11.1(a) |
| Employer regularly has fewer than three employees in the same business in Georgia, unless they elected coverage | The Act does not apply; ordinary claims against the employer remain | § 34-9-2(a)(2) |
| Farm laborers, domestic servants, and employment "not in the usual course of trade, business, occupation, or profession of the employer" | The Act does not apply | § 34-9-2(a)(2) |
| Railroad workers in interstate commerce | Covered by federal law instead (FELA) | § 34-9-2(b) |
| Injury from "the willful act of a third person directed against an employee for reasons personal to such employee" | Not an "injury" under the Act | § 34-9-1(4) |
| Employer's intentional tort that did not arise "in the course of" employment | Tort claim allowed | Potts v. UAP-GA Ag Chem, Inc. (1998) |
| Employer expressly agreed in writing to specific additional remedies | Those remedies are enforceable | § 34-9-11(a) |
Small employers
For workers at very small businesses, the three-employee rule is the first question. The Act does not apply to “any person, firm, or private corporation … that has regularly in service less than three employees in the same business within this state, unless such employees and their employers voluntarily elect to be bound” (§ 34-9-2(a)(2)). For a worker of such an employer on a construction job, § 34-9-8(c) allows the compensation claim to be brought directly against the intermediate or principal contractor when the immediate employer is not subject to the Act for having too few employees; see suing a general contractor for a subcontractor injury.
Intentional conduct
In Potts v. UAP-GA Ag Chem, Inc. (1998), an employee became ill after cleaning chemicals at work; his family alleged that a manager falsely assured his doctor he could not have been exposed, and the doctor stopped treatment for chemical poisoning. The Supreme Court of Georgia drew two lines. An employee “cannot bring a tort action for a compensable injury allegedly resulting from the employer’s or co-employee’s intentional misconduct”. But because the alleged fraud and intentional infliction of emotional distress happened away from the worksite and not “in the course of” his employment, the exclusive-remedy bar did not apply, and summary judgment for the employer was reversed.
Personal attacks
The Act’s definition of injury excludes harm “caused by the willful act of a third person directed against an employee for reasons personal to such employee” (§ 34-9-1(4)). When an assault at work arises from a personal dispute rather than the job, the claim falls outside workers’ compensation, and the ordinary tort rules apply to whoever is responsible.
Federal programs that replace state workers’ comp
Interstate railroad workers sue under the Federal Employers’ Liability Act (§ 34-9-2(b)), and maritime and dock workers can be covered by federal law; see when maritime law applies to a Georgia workplace injury.
The general rule and third-party claims are covered in whether you can sue for a workplace injury or only get workers’ comp.
Sources
- O.C.G.A. §§ 34-9-1, 34-9-2, 34-9-8, 34-9-11, 34-9-11.1 (§§ 34-9-1, 34-9-2, 34-9-11, and 34-9-11.1 text as published in October 2016 on a mirror site; no amendment recorded in the 2022 to 2026 legislative summaries).
- Potts v. UAP-GA Ag Chem, Inc., 270 Ga. 14 (1998)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.