and Employer/Employee Status
2744.03; R.C. 3938.01; R.C. 4123.01; R.C. 4123.021-4123.024; R.C.
4123.025;R.C. 4123.03; R.C. 4123.031-4123.037; R.C. 4123.038; R.C.
4123.15, R.C. 4123.75; R.C. 4139.01; R.C. 4925.10; OAC 4123-17-07; OAC
Percy, Chief of Operational Policy, Analytics & Compliance (Signature on
#CP-03-08, effective 09/29/15
09/29/15; New 03/16/15
purpose of this policy is to ensure BWC staff appropriately recognizes when an IW
is considered an employee for workers’ compensation coverage purposes and other
circumstances that determine the nature of the applicable workers’ compensation
policy applies to Field Operations staff.
Apprentice: An individual at
least sixteen (16) years of age, who is in a registered apprenticeship program
to learn a skilled occupation pursuant to a registered apprenticeship
agreement. For purposes of this policy “apprentice” shall include a:
A written agreement, registered with the apprenticeship council, providing for not
less than two thousand hours of reasonably continuous employment, and for
participation in an approved schedule of work experience through employment,
which shall be supplemented by a minimum of one hundred forty-four hours per
year of related and supplemental instructions.
Quarter: One fourth of a calendar year as follows:
quarter – January 1 through March 31;
quarter - April 1 through June 30;
quarter - July 1 through September 30;
Quarter - October 1 through December 31.
An individual whose work is occasional and not on a regular basis.
Church: An established and
legally recognized church, congregation, denomination, society, corporation,
fellowship, convention or association formed primarily or exclusively for
An oral or written agreement involving any activity in connection with the
erection, alteration, repair, replacement, renovation, installation, or
demolition of any building, structure, highway, or bridge.
Coverage: For purposes of this
policy, reference to an injured worker’s inclusion in a workers’ compensation
policy, whether mandated by law or elective.
Workers’ compensation coverage an employer or individual may obtain pursuant to
R.C. 4123.01, for workers that are not defined as employees for purposes of
a sole proprietorship, a partnership, a limited partnership, an individual
incorporated as a corporation with no employees, a family farm
corporation or an LLC filing a federal tax form as a sole proprietor or
coverage person: a
sole proprietor, a member of a partnership, a member of a limited partnership,
an individual incorporated as a corporation with no employees, an officer of a
family farm corporation, or an individual member of a limited liability company
(LLC) filing a federal tax form as a sole proprietor or partnership.
An individual who has registered for service pursuant to R.C. 5502.34, in
connection with the development, maintenance, and operation of any state or
local emergency management agency authorized by law, and who has met the minimum
requirements of R.C. 4123.031 to 4123.037, or who has been registered as an
emergency management worker pursuant to R.C. 5502.34 during a disaster or
Employee: As defined in R.C.
4123.01(A), the term “employee” includes the following persons that do not meet
the definition of independent contractor and are:
service of the state or political subdivision (e.g., a county, township, school
o Regular members of
lawfully constituted police and fire departments, whether paid or
o Executive officers of
boards of education; and
o Elected officials.
service of any person, firm, or private corporation, including any public service
corporation, that employs one or more persons regularly in the same business or
or casual workers who earn one-hundred sixty-dollars or more in cash in any
calendar quarter from a single household or employer; or
labor or other services pursuant to a construction contract.
Employer: As defined in
R.C. 4123.01(B) the term “employer” includes:
including state hospitals; each county, municipal corporation, township, school
district; and hospital owned by a political subdivision or subdivisions other
than the state; (also known as a “Public Employer”).
firm, professional employer organization, and private corporation, including
any public service corporation, that (a) has in service one or more employees
or shared employees regularly in the same business or in or about the same
establishment under any contract of hire, express or implied, oral or written,
or (b) is bound by any such contract of hire or by any other written contract,
to pay into the insurance fund the premiums as provided by law (Also known as a
An individual who possesses experience that qualifies the individual as a
journeyperson but for the existence of certain other disqualifying conditions,
and who receives on-the-job training accompanied by classroom instruction
outside of normal working hours.
A worker hired to perform services in the home (e.g., housekeeper, nanny,
An individual providing labor or performing services for a recipient according
to his/her own methods and is only subject to the recipient’s control as to the
end product or final result of the work.
An individual with journeyperson status in a given trade who receives classroom
and laboratory training for the purpose of broadening the individual’s skills
and acquainting the individual with new techniques and ideas in the trade.
Minister: A duly ordained,
commissioned, accredited, or licensed minister, member of the clergy, rabbi,
priest, or Christian Science practitioner. This definition includes assistant
ministers and associate ministers.
Members of one of the following:
National Guard, which includes both the Ohio Air National Guard and the Ohio
Army National Guard;
For purposes of this policy, an individual legally vested with law enforcement
rights who generally works for a city, county or state public employer and can
be either “traditional” (e.g., police officer) or “non-traditional” (e.g.,
certain park rangers, tax agents or liquor agents).
Pre-apprentice: An individual
receiving formal classroom training designed to provide basic education,
attitudes, skills, trade knowledge, and motivation necessary to enter a formal
Employer Organization (PEO): A sole proprietor, partnership, association,
limited liability company or corporation that enters into an agreement with one
or more employers, known as client-employers, for the purpose of co-employing
all or part of the client-employer’s work force at the client-employer’s work
Status of a member of the Ohio organized militia who is performing
duty by order of a state authority, and while in this state active duty status
injury and occupational disease benefits are not provided by the federal
An entity that as part of its trade or business provides workers to unrelated
third-party clients to perform services on a temporary basis and derives
revenue or other benefits from providing the workers.
A corporation, partnership, association, limited liability company,
proprietorship, or any other entity operating in this state that uses a digital
network to connect transportation network company riders to transportation
network company drivers who provide transportation network company services.
Network Company Driver: An individual to whom both of the following apply:
individual receives connections to passengers and potential passengers and
related services from a transportation network company in exchange for the
payment of a fee to the company.
individual uses a personal vehicle to offer or provide transportation network
company services to riders upon connection through a digital network controlled
by a transportation network company in return for compensation or payment of a
A. It is the policy of BWC
to determine the employer/employee status of an injured worker (IW) as it
relates to workers’ compensation coverage, including:
1. Whether the IW meets
the definition of employee; or
2. Whether workers’
compensation coverage has been obtained by the employer or IW that applies when
the IW does not meet the definition of employee and/or workers’ compensation
coverage is not mandated by law.
B. Independent Contractor
1. It is the policy of BWC
to initially determine whether the alleged employer controls the manner and
means of work in order to determine whether the IW is an independent
contractor. The IW is not an independent contractor if:
a. The alleged employer
controls the work hours; and
b. The alleged employer
controls the work processes and procedures.
2. If it is unclear
whether the IW is an employee or independent contractor, BWC will conduct
further investigation and:
a. Make a determination on
a case-by-case basis after considering the totality of the information in the
b. If the IW is performing
labor or provides services pursuant to a construction contract, consider the IW
an employee if at least ten of the criteria detailed in R.C. 4123.01(A)(1)(c)
C. Casual or Household
Worker R. C. 4123.01(A)(1)(a)(iii)(b):
A casual or household
worker is considered an employee if:
1. The worker does not
meet the criteria for an independent contractor; and
2. The worker earns $160
or more in cash in any calendar quarter from a single household or employer.
D. Ohio Organized Militia
R.C. 4123.021-4123.024: Members of the Ohio Organized Militia are considered
employees of the state for coverage purposes:
1. When in a state active
duty status; and
2. Injury and occupational
disease benefits are not otherwise provided by the federal government.
E. Emergency Management
Worker R.C. 4123.031-4123.037
1. An emergency
management worker is considered in the employ of the state or local political
subdivision while performing emergency management worker duties. The emergency
management worker must be:
a. Registered for service
as an emergency worker and have taken the appropriate state or federal oath;
b. Acting in good faith in
performing his or her emergency management duty, function or act;
c. Performing such duty in
connection with the development, training, maintenance or operation of the
emergency management agency; and
d. Under express or constructive
instruction or orders of a duly appointed director or an authorized staff
member of the emergency management agency charged with the authority and
responsibility for issuing such instructions or orders.
2. An emergency management
worker, whether paid or volunteer, is eligible for workers’ compensation
F. An Individual Killed
While Performing Request or Order of a Duly Authorized Public Official R.C.
1. An individual injured
or the dependents of an individual killed while performing an act at the
request or order of a duly authorized public official of the state or local
government in a time of emergency is entitled to workers’ compensation
2. Payment in this
circumstance is charged to the Surplus Fund.
G. Responders to an
Inherently Dangerous Situation R.C. 4123.01(A)(1)(a)
workers (paid or volunteer) are covered by workers’ compensation, even outside
of the worker’s regular jurisdiction, if:
1. The worker is one of
a. Peace officer;
b. Firefighter, whether
paid or volunteer of a lawfully constituted fire department;
emergency medical technicians-basic, emergency medical
technicians-intermediate, or emergency medical technicians-paramedic of an
ambulance service organization or emergency medical service organization
pursuant to R.C. 4765;
2. The situation being
responded to is inherently dangerous;
3. The situation requires
immediate response on the part of the worker; and
4. The worker is
responding in the same manner as he or she would when on-duty.
H. Professional Employer
Organization (PEO) R.C. 4123-17-15:
BWC will identify the
PEO as the employer for coverage purposes when a claim is filed by an IW
co-employed by a PEO and a client of the PEO. See Employer Policy Professional
Employer Organization (PEO) Policy including Use of NCCI Manual of Clients
for further information.
BWC will identify the temporary service agency as the employer for coverage
purposes when a claim is filed by an IW employed by the temporary service
agency, working temporarily for a third-party client.
J. Injuries Incurred While
Participating in an Approved Rehabilitation Plan
1. When an IW is injured
while participating in an approved rehabilitation plan BWC is considered the
employer for coverage purposes.
2. Payment in this
circumstance is charged to the Surplus Fund.
K. Elective Coverage
1. If the employer is a
sole proprietorship or partnership (including a limited liability company (LLC)
acting as a partnership or sole proprietorship), family farm corporation, or an
individual incorporated as a corporation, the employer may elect to include as
an employee for purposes of workers’ compensation coverage:
a. Any member of the
b. The owner of the sole
c. The individual
incorporated as a corporation; or
d. The officers of the
family farm corporation.
2. A church employer may
elect to include as an employee the following duly ordained, commissioned or
licensed individuals when such individual is performing duties related to his
or her ministry, or such individual may choose to obtain coverage as a sole
b. Assistant minister; or
c. Associate minister.
3. Notice of Election:
Effective September 29, 2015, when an employer has elected coverage for any
individual listed in section IV.K.1 above, BWC shall not provide workers’
compensation benefits or compensation until BWC receives written notice of the
4. Volunteer Officer of a
Nonprofit Corporation: Effective September 29, 2015, pursuant to R.C.
4123.01(A)(2), a volunteer officer of a nonprofit corporation is specifically
excluded from the definition of employee and the employer does not have the
option to elect coverage.
L. Transportation Network
1. Effective March 23,
2016, pursuant to R.C. 4925.16, a transportation network company driver is not
an employee or agent of the company and is not covered by workers’ compensation
coverage by the transportation network company, except where agreed to by
2. It is the responsibility
of the transportation network company to notify BWC of any such agreement.
M. Coverage Exemption for
Religious Sects R.C. 4123.15
1. Upon the filing of an Application
for Exemption from Ohio Workers’ Coverage and Waiver of Benefits (U-3E),
BWC may approve an employer and employee exemption from workers’ compensation
2. The employer and the
employee must both file the U-3E and obtain approval for the waiver.
3. An employer may have some
employees that are exempt from coverage and some that are not.
4. The employer and
employee do not have to be members of the same religious sect.
N. Performing Special
Services for the State or a Political Subdivision R.C. 4123.03: A state agency or
political subdivision may enter into a Contract for Coverage of State Agency
or Political Subdivision (U-69) with BWC to provide workers’ compensation
coverage to individuals that do not otherwise meet the definition of an
employee, but are performing services for the state agency or political
subdivision. These elective employees may include:
a. An individual
performing community service (typically one on probation or serving community
service in lieu of conviction of a criminal offense);
b. An individual
incarcerated in a state or local correctional facility participating in an
inmate work program;
volunteers (e.g., people picking up trash in parks); and
O. Apprenticeship R.C.
apprenticeship organization or joint committee may enter into an
Apprenticeship Elective Coverage Contract (U-80) with BWC to provide
workers’ compensation coverage to an apprentice, pre-apprentice, entry-level
trainees, and journeyman.
P. No Coverage/Non-Complying
1. BWC will pay
compensation and benefits to an IW from the Surplus Fund when:
a. A claim is filed
against an employer whose coverage (policy number) is not in active status at
the time of injury; or
b. A claim is filed against
an employer that does not have a policy number.
2. If an employer does not
have a policy number, BWC will assign a number for claim processing purposes.
3. An employer with no
coverage/no active policy at the time of an IW’s injury will be held
responsible for the cost of the claim and for any premium or penalty due.
4. An employer contracting
with a non-complying subcontractor will be liable for claims of the
subcontractor’s injured employees. The employer shall also be liable for the
subcontractor’s unpaid premium relating to the work done for the employer.
BWC staff may refer to
the corresponding procedure entitled “Coverage and Employer/Employee Status”
for further guidance.