Two construction workers died on the job every day in 2013, according to the U.S. Occupational Safety and Health Administration. One out of every 25 construction workers got hurt on the job that year. Workers in this industry need the protection of Workers’ Compensation benefits more than most.
Most states require employers to carry Workers’ Compensation insurance, but not in all cases. Many states exempt one-person operations from the requirement, for example. Regardless, it is a good practice for project owners and general contractors who hire subcontractors to require the subs to carry this insurance, whether the law requires it or not.
A typical construction project involves three types of entities: The owner who is paying to have the project done; a general contractor or independent contractor whom the owner hires to do the work; and subcontractors whom the GC hires to do portions of the work. The relationships between these entities and their employees differ.
While most states require employers to provide Workers’ Compensation benefits to employees, their laws also define who exactly is an employee. If someone is working on my property, but the law does not consider that person to be my employee, then I do not owe that person Workers’ Compensation benefits. States use several criteria to determine whether two parties are in an employer-employee relationship. These are similar to the criteria the Internal Revenue Service uses, such as control over when and how work is performed.
Typically, state regulators do not find a construction worker to be an employee of a project owner. The same cannot be said about independent contractors and employees of subs, however. Some sole proprietor subcontractors who suffer worksite injuries claim Workers’ Compensation benefits under the policies of the contractors who hired them. Often, state Workers’ Compensation law judges rule that these individuals were acting as employees of the hiring contractors, not independent contractors.
In addition, many state laws require an independent contractor who hires a sub to provide Workers’ Compensation benefits to the sub’s employees if the sub fails to obtain insurance. The injured subs or their employees end up collecting benefits even though that was never the intention of the hiring contractors. Consequently, insurance companies can and do charge independent contractors additional premiums when they find that uninsured subs have worked for them.
In a worse case scenario, both the independent contractor and the sub may fail to buy Workers’ Compensation insurance. Leaving aside the legal problems that will result for the employers, this leaves injured workers without sources of the benefits to which they are entitled. Their logical recourse is to sue the project owner. They may seek damages for an alleged failure to maintain a safe worksite or for negligence in the hiring and supervision of contractors. Since the project owners are not the employers of these injured workers, their own Workers’ Compensation policies will not help. Rather, they will have to seek legal defense and the payment of any awards from their liability insurance companies.
For these reasons, project owners should insist and verify that all contractors working on the job, including subs, carry their own Workers’ Compensation insurance. Independent contractors should do likewise with the subs they hire. Project owners may want to supplement their protection by making the independent contractors responsible for verifying that the subs have insurance, and by requiring the independents to hold the owners harmless from any lawsuits resulting from workplace injuries.
Construction is dangerous work. Every contractor setting foot on a job site should carry its own Workers’ Compensation coverage, whether the law requires it to or not.
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