One question we get often from small business owners is whether they have to secure workers’ comp coverage for family members that work for them. The short answer is “yes,” in most cases.
Under California law, every employer in the state that uses employee labor, including family members, must secure workers’ comp coverage, as per California Labor Code Section 3700. When we talk about family members we usually mean children, spouses, nieces, nephews, uncles, aunts, grandparents and cousins.
If you fail to include a working family member on your workers’ comp policy, you could risk a fine, so it’s wise to understand the regulations.
Here are a few scenarios:
Your nephew helps in your business for a few hours a day, but you don’t consider him an employee. – Under labor law he is considered an employee. An “employee” is defined as someone you engage or permit to work. Even though your nephew is part of your family, he is considered an employee and hence must be covered by workers’ comp insurance in case he is injured on the job.
If the state finds out that you don’t have the necessary workers’ comp insurance, you could face serious consequences including fines ($1,500 per employee or twice the amount you would have paid in insurance premiums, whichever is more) and even misdemeanor charges.
Also, if your nephew got hurt at the store, he (or his parents) could file a personal injury lawsuit against you if you don’t have him covered on your policy.
You run a diner and your daughter works 25 hours a week in the kitchen< – Your daughter would be considered an employee subject to workers’ comp laws and she would not be able to be excluded on your workers’ comp (unless of course she was an owner/officer, member or partner).
You have a small business and your husband helps out about 10 to 15 hours per week – Your workers’ comp policy may not have to cover you and your husband.
But it could depend on whether your business is a sole proprietorship (which can be owned by a married couple in California), a partnership or a limited liability company.
If you are a married sole proprietor, in the state of California, typically your insurance company will consider your spouse a co-owner and exclude them without any question. But different insurance companies will handle this situation differently, so it’s important to know how yours handles it.
If you’re a corporation, LLC or partnership, your spouse cannot be excluded merely because he/she is your spouse. If you formed a corporation, your spouse would have to own shares and be a titled officer in the corporation in order to be excluded.
If you formed an LLC, your spouse would have to be member of the LLC in order to be excluded. If you formed a partnership, your spouse would have to be one of the partners to be excluded.
Some employees are happy to take chances when it comes to safety. They take needless risks in an effort to save time or cut their workload. In reality, all they’re doing is subjecting themselves and others to hazards that could cause a serious injury.
Workers form bad habits when they repeatedly perform their jobs in an unsafe way and don’t get injured. They become convinced that because of their skills they are incapable of being hurt. It’s this attitude that usually ends up doing them in, because they take even more chances until eventually a serious accident does occur.
Unfortunately, that one accident can turn out to be fatal.
Most of a chance-taker’s careless acts can be broken down into one of the following categories:
- Failing to follow proper job procedure
- Cleaning, oiling, adjusting or repairing equipment that is moving, electrically energized or pressurized
- Failing to use available personal protective equipment, such as gloves, goggles and hard hats
- Failing to wear safe personal attire
- Failing to secure or warn about hazards
- Using equipment improperly
- Making safety devices inoperable
- Operating or working at unsafe speeds
- Taking an unsafe position or posture
- Placing, mixing or combining tools and materials unsafely
- Using tools or equipment known to be unsafe
- Engaging in horseplay
Although OSHA does not cite employees for safety violations, each employee is obliged to comply with all applicable OSHA standards, rules, regulations and orders. Employee responsibilities and rights in states with their own occupational safety and health programs are generally the same as for workers in states covered by Federal OSHA.
Guidelines for workers
Employees should follow these guidelines:
- Read OSHA notices at the jobsite
- Comply with all applicable OSHA standards
- Follow all lawful employer health and safety rules and regulations, and wear or use prescribed protective equipment while working
- Report hazardous conditions to a supervisor
- Report any job-related injury or illness to the employer, and seek treatment promptly
- Exercise these rights in a responsible manner
If you are working with a risk-taker, ask him to stop and consider what jeopardy he is putting himself and others in. Then buddy up with him to find a safer way to perform the task. Remember, unsafe actions don’t result in saving time if a worker gets injured in the process.
While injuries and deaths that occur while someone is carrying out their work on behalf of their employer are compensated by workers’ comp coverage, not all workplace injuries or deaths are compensable, as a recent court case shows.
In the case, a heating and air conditioning technician died of a heart attack while working in an attic. But his wife was denied workers’ comp death benefits by the insurance company and a workers’ comp judge on the basis that the heart attack was not related to work.
The decision by the judge was appealed and a state court recently ruled that this was not a case for workers’ comp benefits despite the wife’s argument that the employer knew the technician was feeling bad when he arrived at work and should not have sent him to work in an attic space.
But the case could have gone the other way had the technician’s supervisor acted differently.
In the case of Lisa Kelly vs. Workers’ Compensation Appeals Board in Pennsylvania, the technician, upon arriving at work, told his supervisor that he was feeling weak, tired and had a kink in his neck from sleeping poorly the night before.
His supervisor told him that he could take the day off if he was feeling poorly, but Kelly said he would continue working. Still, the supervisor gave him a light duty assignment in consideration of how he was feeling.
While the technician was laying a thermostat wire in the attic of the building, other workers heard moans and climbed the 15-foot ladder to investigate. They found the technician lying incoherent on the floor thrashing around on the drywall between the trusses, and making babbling sounds while bleeding from his head, face and leg.
An ambulance transported Kelly to a local hospital, where he was pronounced dead. The autopsy findings revealed the presence of coronary artery disease, coronary heart disease, atherosclerotic heart disease, and ischemic heart disease.
Kelly’s widow filed a workers’ comp claim for survivors’ benefits, claiming his heart attack had occurred as a result of his employment.
She backed up this claim by stating that he didn’t have any health problems, didn’t complain about chest pain, never saw a heart doctor and wasn’t on any medication. But she did acknowledge that her husband had smoked a pack a day for the last 30 years.
The company denied the claim and she took the case before a workers’ comp judge, and later to appeal at the state court level.
Why the employer is not on the hook
The court noted that the plaintiff had failed to show the two underpinnings of a workers’ comp claim:
- That the death arose in the course of employment, and
- That the death was related to employment.
While it’s indisputable that the heart attack happened at work, the court said the evidence showed that the heart attack was not related to his work.
Kelly’s supervisor and other workers all said that the work the technician had been assigned was not strenuous work, like much of the other work they engage in.
The doctor said that the autopsy indicated that the technician had been suffering from insufficient blood flow to the heart eight to 12 hours before coming to work, and that he was at risk for a heart attack regardless of what he had done that day.
Workers’ comp attorneys say this case could have gone the other way had the supervisor not acted appropriately. In this case, he did the right thing by offering to send Kelly home for the day and, when the worker refused, he was instead assigned light duty.
While employers are responsible for keeping their workers’ safe, they cannot do much about their underlying health problems.
Studies show that for every major workplace injury or fatality, there are nearly 10 minor injuries – and more than 30 accidents that lead to property damage. Capturing data even on minor safety incidents can be critical in informing efforts to prevent much greater dangers in the future. This item sets out the areas on which management should focus its efforts in this regard.
Studies show that for every major workplace injury or fatality, there are nearly 10 minor injuries – and more than 30 accidents that lead to property damage.
Capturing data even on minor incidents that may seem trivial in isolation can be critical in informing efforts to prevent much greater dangers in the future. A big part of that effort involves ensuring businesses maintain a complete set of data.
Managers at all levels should focus on solid and thorough documentation. Here is where management’s main effort should be concentrated:
Don’t ignore minor incidents. Document all of them. Even if you have avoided injuries and severe property damage so far, keeping careful records may provide critical risk management insights – and enable managers to take action to prevent accidents before they occur.
Identify patterns. Do minor incidents seem to happen in the same area? Involve the same or similar machinery? Are they in the same department or under the same manager? Careful record-keeping is a valuable tool for identifying patterns.
Discourage presenteeism. Workers who come to work sick may be taking medications that increase the risk of incidents. Workers are not robots: Sick or distracted workers may make serious or deadly mistakes. To prevent this, have a sustainable sick day policy and encourage workers to take time off when needed – especially in dangerous occupations.
Encourage reporting. Studies have shown that the vast majority of minor incidents are not properly reported or recorded.
One study found that 85% of workers told researchers they had experienced work-related symptoms, 50% had experienced persistent work-related medical symptoms and 30% reported they had lost time from an incident or from a repetitive motion injury – yet only 5% of workers told researchers they had formally reported any of these incidents.
When asked why they didn’t report safety incidents, workers cited a number of reasons:
- Fear of reprisal
- Poor management response to prior reports
- Fear of losing their job or being transferred to a less desirable position
- Belief that pain or another medical symptom was a normal consequence of work activity or ageing.
Maintain OSHA-required injury logs. By federal law, most employers must maintain the following safety documents:
- OSHA Form 300 – Log of Work-Related Injuries and Illnesses
- OSHA Form 300A – Summary of Work-Related Injuries and Illnesses
- OSHA Form 301 – Injury and Illness Incident Report
Employers with 10 or fewer employees at all times during the preceding calendar year are exempt from the federal requirement, though many states may impose more stringent requirements.
Record near misses. Often, near misses – in which property damage, injury or fatality were narrowly avoided – can provide data that’s just as valuable as for incidents resulting in actual damages or injuries. This information can prove vital to informing prevention efforts.
Perhaps most importantly, carefully documenting all safety incidents and near misses, however minor, may help establish a culture of safety throughout the organization.