§ 1 (4) states that an employee is "every person in the service of another under any contract of hire, express or implied, oral or written." Exceptions include but are not limited to:Seamen engaged in interstate/foreign commerce;
Salesmen of real estate or consumer goods who work on a commission, or buy/sell basis, other than in a retail establishment, (with a written contract stating they are not treated as an employee under federal tax law);
Taxi drivers who lease their cabs on a fee basis not related to fares collected (and who are not treated as an employee under federal tax law);
Persons engaged in interstate/foreign commerce who are covered by federal law for compensation for injury or death.
2. How does the Department Of Industrial Accidents (DIA) classify an independent contractor and must they be covered under a workers compensation policy?
Questions regarding independent contract coverage will be answered by one of our attorney's. Please contact our Legal Unit at 617-727-4900, x 423 to speak with an attorney.
3. How is "subcontractor" defined? Is there a simple rule of thumb for deciding who is a subcontractor?
No, questions about subcontractors should be addressed to the Office of Legal Counsel in Boston, 617-727-4900, x 423. These questions are very fact-based, and generally are determined by whether control over the manner and methods of the work is retained by the employer.
4. I worked as a subcontractor, and had money deducted for workers' compensation coverage by the general contractor; can they do that?
Yes, but only if it is provided for in the contract they have with you, or otherwise explicitly provided. General contractors have legitimate concerns about whether you have WC insurance since they can be found liable for claims against them by a subcontractor or their employees. Therefore, you may find that the general contractor requires you to provide proof of coverage, or that you agree to come under their workers' comp policy with such costs passed on to you.
5. As a homeowner can I be held liable if a contractor working in my home is injured on the job?
Under some circumstances, yes.
6. What are the penalties for an employer who does not have workers' compensation insurance?
Employers operating without insurance are subject to civil fines and/or criminal penalties, including imprisonment, and are subject to a STOP WORK order issued to their business. Under MGL c. 152, § 25C, civil fines can be up to $ 250 a day, and criminal penalties include a fine of up to $ 1500, imprisonment for not more than a (1) year, or both. Additionally, a recent change to this section states, "(10) In addition to being subject to the civil penalties herein provided, an employer who fails to provide for insurance or self insurance as required by this chapter or knowingly misclassify employees, to avoid higher premium rates, will be immediately debarred from bidding or participating in any state or municipal funded contracts for a period of three (3) years and shall when applicable be subject to penalties provided for in (MGL c. 152) § fourteen (14)".
7. As an employer, what is my responsibility in reporting injuries?
If you know of an injury to one of your employees, or an employee alleges an injury to you, that has resulted in five (5) full or partial calendar days of disability, you must file an Employer's First Report of Injury Or Fatality Form - Form 101. You are required to file this form with the DIA and your insurer within seven (7) calendar days, not including Sundays and legal holidays, from the fifth day of disability. You should also give a copy to the injured employee. If the employee reports the injury to you after he or she has already been disabled for five (5) or more days, you would have to file the Employer's First Report of Injury Or Fatality Form - Form 101 within seven (7) calendar days, not including Sundays and legal holidays, of the day the injury was actually reported to you. If the injury results in just medical bills, or fewer than five (5) full or partial calendar days of disability, you would report it just to your insurer, on whatever form they have for this purpose.
8. Where do I get the First Report of Injury or Fatality - Form 101 I need to file?
DIA forms can be obtained either from your insurance company or from the DIA. With the exceptions of three (3) forms, all DIA forms can be filled out and then printed directly from our website. You should ensure that your company has an adequate supply on hand at your place of business; it may be too late to get the forms once an accident takes place. All DIA forms are on plain white paper, and can be photocopied.
Please Note: All forms filed by US mail to the DIA require an original signature.
9. Can I file First Report of Injury or Fatality - Form 101 electronically?
Yes; the DIA can set up an account for you to file First Reports electronically. Information on the process, and the form to request a log-in and password, can be found on our website under Online Services on our main page.
10. If I file the First Report of Injury or Fatality - Form 101 electronically will I get a confirmation that the filing was accepted?
When your electronic filing is received you will get a Transmittal ID number to keep for your records. After the DIA Claims Office reviews the form and approves it, you will receive another e-mail message with the DIA Board Number.
11. Do I have to pay an injured worker for the entire day if they have to leave work due to an accident?
No; the only requirement under state law is that employers need to pay workers for the hours he/she actually worked. However, if the employer does pay the worker for just the hours worked, then the day the worker was injured would be considered the first calendar day of disability. If the employer pays the worker for the entire day, or shift, then the next day would be considered the first day of disability.
12. An employee of mine was injured on the job and then quit; do I need to file an Employer's First Report of Injury Or Fatality - Form 101, and if so, how do I determine the first and fifth lost days?
Yes, if the injury would have resulted in five (5) or more full or partial calendar days of disability, you would need to report this accident. The first missed day would be the first day the employee could not earn full wages due to the injury, and the fifth lost day is the fifth calendar day of disability.
13. I am starting a business and need workers' compensation insurance. What do I do?
You can get insurance through any insurance agent or broker who handles business insurance or through a direct writer of insurance. For more information, call the Workers' Compensation Rating and Inspection Bureau, 617-439-9030.
14. What should I be paying for insurance?
Call the Insurance Rating Bureau, 617-439-9030. If you feel your rates are too high, you can appeal to the Board of Appeals within the Massachusetts Division of Insurance, 617-521-7777.
15. I am the owner of a very small business, with only a few employees. Do I need workers' compensation insurance?
All employers in Massachusetts are required by state law to carry workers' compensation insurance covering their employees, including themselves if they are an employee of their company. This requirement applies regardless of the number of hours worked in any given week, except that domestic service employees must work a minimum of 16 hours per week in order to require coverage.
16. I own a small business. The only person working with me is my wife (or son, or brother). Do I need workers compensation insurance?
Yes, family members must be covered by workers' compensation insurance, even if they are the only employees of the company.
17. I am a corporate officer, the sole owner of the corporation. I have two employees working for me; I know I need workers' compensation insurance for my employees, but do I have to cover myself?
No; on July 25, 2002, a change in the workers' compensation law went into effect which allowed corporate officers who own at least 25 % of the corporation to exempt themselves from WC coverage. Such corporate officers can file the Affidavit of Exemption for Certain Corporate Officers or Directors - Form 153 with the DIA to exempt themselves. This change does not affect the requirement that all employers cover their employees with Workers Compensation insurance.
18. I'm self-employed, the sole proprietor of my company which is not incorporated; do I need to get workers' compensation insurance for myself?
As the sole proprietor of an unincorporated business the law does not require you to insure yourself. However, under a recent change to the law, sole proprietors and partnerships (that have no employees) can now obtain insurance if they so choose. If you do work for a general contractor they may want you purchase a policy in order to work on a particular job they are overseeing.
19. I am the owner of a business outside of Massachusetts and have been hired to do some work in Mass., do I need to get a Massachusetts Policy for workers' comp?
Out of State employers are required to cover all their employees, who are working in Massachusetts, with workers' compensation benefits under Massachusetts law. You do not need to buy a policy strictly for Massachusetts if in your existing workers' comp policy Massachusetts coverage is listed in Section 3.A of the policy's Information Page.
If Massachusetts is specifically listed in Section 3.C of the Information Page, the policy is acceptable only if the Insurer (Insurance Carrier) verifies the coverage in Massachusetts. The Insurer must forward a statement verifying workers' compensation coverage in Massachusetts to the Office of Investigations. If the Insurer fails to meet this requirement, a Stop Work Order is immediately issued.
Furthermore, any notation in Section 3.C of the policy's information page that "all states are covered" or "all states are covered except those listed in Item 3.A and the States of: ND OH WA WY" or something similar is acceptable only upon verification of workers' compensation coverage in Massachusetts by the insurer. The insurer must forward a statement verifying workers' compensation coverage in Massachusetts to the Office of Investigations. If the insurer fails to meet this requirement, a Stop Work Order shall be issued immediately.
20. I am an employer, and I have a question about the experience modification for my business.
Call the Insurance Rating Bureau, 617-439-9030.
21. I am an employer; who can answer a question about the assessment on my workers' compensation insurance?
Call the DIA Assessments Office at 617-626-5484.
22. How long after one of my employees has been injured on the job does the insurance company have to respond?
The insurance company has 14 calendar days from the date they receive the Employer's First Report of Injury or Fatality - Form 101 to mail a check and the Insurer's Notification of Payment - Form 103 to the employee; or if they intend to contest the claim, to send a certified letter denying compensation via an Insurer's Notification of Denial - Form 104.
23. I need to replace an employee who is injured and is collecting workers' compensation; do I have to hold the job open for the employee?
Unless a union contract, or the individual's contract of hire, requires it, an employer does not have to hold an injured worker's job open while they are unable to work due to an occupational accident. MGL c. 152 § 75A does require employers to give preferential treatment in the rehiring of injured workers when they are ready to return to work. MGL c. 152 § 75B requires that employers make all reasonable accommodations to anyone who is deemed to be a qualified handicapped person under MGL c. 151B.
24. What must employers do to make sure that employees are aware of insurance coverage and/or other related information?
All employers must post a Notice To Employees Poster on a bulletin board in a suitable public area on their premises. The notice, which is available at all DIA offices and on our website, must be completed in its entirety indicating the name of the insurance carrier, the address, policy number, and a contact person to whom injuries or incidents should be reported. This is all public information, and must be readily available to any person who needs it. Failure to provide the information to the employee is a violation of the law, and the employer is subject to a fine. There is also an optional space on the notice to list a designated healthcare provider for initial treatment following an injury.
25. As an employer, what rights do I have during the claim process?
It is your right as the employer to attend the Conciliation, Conference and/or Hearing proceedings; however you may not participate unless you are called as a witness. For this purpose, all employers are encouraged to maintain well documented records of all accidents and reports including names of witnesses. If you have any pertinent information relating to any claims, you should inform the insurer. While the insurer is the legally interested party during the claims process, the employer will receive notice of Conciliation, Hearing, Lump Sum Conference or any proceeding involving employer misconduct (MGL c. 152, § 28). You are required to attend only the § 28 Willful Misconduct proceedings.
26. If one of my employees uses my facilities to do some purely personal work, would he still be able to claim WC benefits if he was injured?
If what they were involved in was purely personal, then they probably would not be able to claim benefits under your WC policy. But if it was held that use of your facilities was part of their compensation for their employment, it could be held that the injury was incidental to employment and thus covered by workers' compensation.
27. I know someone who may be defrauding an insurance company, what do I do?
If it is an employer who does not have worker's comp insurance, call our hotline,1-877-MASSAFE (877-627-7233) x 214; if it is an injured worker defrauding an insurer, you should contact the insurer directly, and notify the Insurance Fraud Bureau, at 1-800-32-FRAUD, or 617-439-0439.
28. I am concerned about how safe our workspaces are. Is there a state agency that can help me make sure my business is safe for our employees?
The Department of Labor Standards (DLS) offers a free consultation service designed to help employers recognize and control potential safety and health hazards at their workplace, improve their safety and health program, assist in training employees, and possibly qualify for a one-year exemption from routine OSHA inspections. This service, which is jointly funded by the DLS and the US Department of Labor, Occupational Safety and Health Administration (OSHA), is primarily targeted for smaller businesses (less than 250 employees per establishment or 500 employees nationwide) in high hazard industries; such as manufacturing, healthcare, and construction. It is a confidential service in which your firm's name, and any other information you provide and any unsafe or unhealthy working conditions found, will not be reported routinely to the OSHA inspection staff.
29. I have a question about qualified loss management; who can I talk to?
Contact the MA Workers' Compensation Insurance Rating Bureau, 617-439-9030.
30. I need an OSHA Log 300; how do I get one?
Call OSHA in Boston, 617-565-9860.