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OhioBWC - Basics: (Policy library) - File

 

Policy Name:

Coverage and Employer/Employee Status

Policy #:

CP-03-08

Code/Rule Reference:

R.C. 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 4123-17-15

Effective Date:

09/20/16

Approved:

Rick Percy, Chief of Operational Policy, Analytics & Compliance (Signature on file)

Origin:

Claims Policy 

Supersedes:

Policy #CP-03-08, effective 09/29/15

History:

Rev. 09/29/15; New 03/16/15

Review date:

09/20/19

 

 

I. POLICY PURPOSE

 

The 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 coverage.

 

II. APPLICABILITY

 

This policy applies to Field Operations staff. 

 

III. DEFINITIONS

 

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:

·         Pre-apprentice;

·         Entry-level trainee;

·         Journeyperson.

 

Apprenticeship Agreement: 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.

 

Calendar Quarter: One fourth of a calendar year as follows:

·         1st quarter – January 1 through March 31;

·         2nd quarter - April 1 through June 30;

·         3rd  quarter -  July 1 through September 30;

·         4th Quarter - October 1 through December 31.

 

Casual Worker: 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 religious purposes.

 

Construction Contract: 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.

 

Elective Coverage: 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 workers’ compensation.

·         Elective coverage entity: 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 partnership.

·         Elective 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.

 

Emergency Management Worker: 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 emergency.

 

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:

·         In the service of the state or political subdivision (e.g., a county, township, school district), including:

o   Regular members of lawfully constituted police and fire departments,  whether paid or volunteer;

o   Executive officers of boards of education; and

o   Elected officials.

·         In the 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 establishment;

·         Household or casual workers who earn one-hundred sixty-dollars or more in cash in any calendar quarter from a single household or employer; or

·         Performing labor or other services pursuant to a construction contract.

 

Employer: As defined in R.C. 4123.01(B) the term “employer” includes: 

·         The state, 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”).

·         A person, 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 “Private Employer”).

 

Entry-level Trainee: 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.

 

Household Worker: A worker hired to perform services in the home (e.g., housekeeper, nanny, and gardener).

 

Independent Contractor: 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.

 

Journeyperson Trainee: 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.

 

Ohio Organized Militia: Members of one of the following:

·         The Ohio National Guard, which includes both the Ohio Air National Guard and the Ohio Army National Guard;

·         The Ohio Naval Militia;

·         The Ohio Military Reserve.

 

Peace Officer: 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 apprenticeship program.

 

Professional 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 site.

 

State Active Duty: 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 government.

 

Temporary Service Agency: 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.

 

Transportation Network Company: 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.

 

Transportation Network Company Driver: An individual to whom both of the following apply:

·         The 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.

·         The 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 fee.

 

IV. POLICY

 

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 Relationship

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 claim; or

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) apply.

 

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 benefits.

 

F.    An Individual Killed While Performing Request or Order of a Duly Authorized Public Official R.C. 4123.025

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 coverage.

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)

Certain off-duty workers (paid or volunteer) are covered by workers’ compensation, even outside of the worker’s regular jurisdiction, if:

1.    The worker is one of the following:

a.    Peace officer;

b.    Firefighter, whether paid or volunteer of a lawfully constituted fire department;

c.    First-responders, 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.

 

I.      Temporary Service Agency: 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 partnership;

b.    The owner of the sole proprietorship;

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 proprietor:

a.    Minister;

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 election.

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 Company

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 written contract.

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 coverage.

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;

c.    Non-emergency volunteers (e.g.,  people picking up trash in parks); and

d.    Jurors.

 

O.   Apprenticeship R.C. 4123.038-4123.039: An 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 Employer Claims

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.

 

 

 


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