Workers Compensation Facts

Edward A. Schirick, CPCU, CIC, CRM
May 2015

Workers compensation laws exist in all 50 states and in the District of Columbia. Each state’s law is different. Do you understand your camp employer’s obligations as well as yours? This is an essential part of risk management at camp for all concerned.

The following information provides an overview of some workers compensation topics and is not an exhaustive discussion.

Historical Perspective

Prior to the advent of workers compensation laws, employee injuries were litigated in the courts under the tort liability system. Under this system, employers had certain common law defenses they could use to respond to employee allegations of negligence and unsafe workplaces. As America industrialized in the 19th and 20th centuries it became apparent the tort liability system was not an efficient way to handle employee injuries.

What evolved was a “no fault” system requiring employers to pay for employee injuries, lost wages, rehabilitation, and retraining services when the employee’s injuries developed out of and in the course of their employment. The workers compensation laws in most jurisdictions make these benefits an exclusive remedy for employees and bar you, the employee, from suing the employer for negligence.

Establishment of the workers compensation system did not relieve employers of their duty to provide employees with a safe workplace. Indeed, the workers compensation laws created a new risk for employers. This risk has become known as compliance risk.

Compliance Risk

Compliance risk is the financial and reputational threat posed to a camp as a result of violating laws, regulations, or prescribed practices. Noncompliance may lead to fines, a camp’s inability to secure workers compensation insurance outside of assigned risk plans, which have higher rates and surcharges, and payment of damages for injuries to employees that come out of company assets or current camp income.

In addition to state laws concerning workers compensation, five states (California, Hawaii, New York, New Jersey, and Rhode Island) have mandatory disability benefit laws that add to the compliance risk burden. These disability benefit laws require employers to also provide disability benefits to employees for non-occupational injuries or illnesses. The laws vary by state. Some may not apply to seasonal staff.

Workers Compensation Primer

While every state law is different, there are some common threads between the statutes. Following is a general discussion of certain key aspects of state workers compensation laws. As a camp worker, you should be aware of these points.

Covered Employments

Every state law provides clarification on the type of employments that are subject to the law. Covered employment definitions can vary greatly from state to state. Typically the law makes a statement such as all employments are subject to the workers compensation act with certain exceptions.

For example, in California volunteer workers are not covered under the workers compensation law, but the law allows private and not-for-profit organizations to elect to cover volunteer workers under the workers compensation system if the election is in writing and completed prior to the injury.

Confirm your camp employer provides workers compensation insurance for seasonal staff.

Volunteer Workers

Other state’s workers compensation laws may not be as clear as California’s on coverage for volunteer workers. This is a complex issue. Ask an insurance agent and he will tell you volunteers are not covered under workers compensation because they are not employees. This is correct. But, can volunteer workers become employees?

Generally, if as a volunteer worker you receive no compensation of any kind, then you are most likely not an employee and not covered under workers compensation if injured while volunteering. In other instances, volunteer workers may meet the state’s definition of employee. This occurs when the camp reimburses volunteers for such items as gasoline expenses or provides room or board and other consideration for volunteer service. In most states, a key criterion in granting employee status to a volunteer worker is determining if the person is receiving remuneration of any kind, not just wages. If so, you’re probably deemed an employee.

As a practical matter, every case involving injuries to volunteer workers at camp is considered individually. The decision about whether the volunteer is an employee and included for coverage under the camp’s state’s workers compensation law hinges on the facts of each situation. Determine how your camp treats volunteer workers.

Gaps and Traps

Employees have certain obligations to employers as well. If you are injured while working, report the incident and your injury to your supervisor immediately. Delay in seeking treatment may lead to a more complicated recovery.

The ACA Healthy Camp study revealed that female staff were quicker to report their work-related injuries than their male counterparts.

Injuries sustained on your time off may not be covered under workers compensation insurance because they don’t occur out of and in the course of employment. Each injury sustained on your time off will be evaluated individually. Make sure you have personal health insurance coverage as required by federal law either under your parents’ policies or your own personal policy to pay for medical expenses resulting from injury or illness that is not work related.

Independent Contractors

In a related matter, many state laws make employers responsible for injuries to employees of independent contractors if those independent contractors don’t have workers compensation insurance. Your camp may well request certificates of insurance from all independent contractors who perform work there as proof they have workers compensation insurance. Stop activities led by independent contractors if you observe them engaged in unsafe practices that may put campers or staff at risk of injury.

International Staff

If you are an international staff member at your camp through the J-1 Visa program, you are generally considered an employee for workers compensation purposes. Typically, expenses incurred for injuries to international staff that arise out of and in the course of their camp employment are covered by workers compensation insurance. However, there could be some exceptions in some states.

Extra Territorial Coverage

Workers compensation laws are state specific and apply to injuries sustained by employees in the state where your camp is located. What happens when you travel outside of the state and are injured? Generally, most state laws have extra territorial coverage that extends coverage to injuries sustained outside of the state where they are employed.

For example, an employee of a camp in Wisconsin travels to Minnesota where she is injured. Can she collect benefits under Wisconsin law? The answer is yes if one of six contingent factors apply. Could she collect benefits under Minnesota’s workers compensation laws if they were better than Wisconsin’s? Again the answer is yes. Every state law is slightly different on this issue, so it pays to know the facts of your specific situation. Make sure you understand your options when making a workers compensation claim.

Rules, Rules, Rules

Running a business in today’s environment is increasingly complicated and challenging. There are lots of rules imposed externally upon camps by local, state, and federal government and regulatory bodies. As a safeguard, camps often impose significant internal guidelines on themselves in the form of company policies, industry standards, or risk management practices to reduce the risk of things going wrong. As a camp employee, you should be aware of those.

Quite surprisingly, during the ACA Healthy Camp Study it was discovered that many staff were not following the prescribed risk management guidelines (ACA Standards) for certain activities. One example cited in the report was staff were not wearing personal protective equipment (PFDs) during boating activities.

This causes an unnecessary compliance risk for your camp, which takes keeping its staff and campers safe very seriously. So make sure you’ve adequately understood any risk management and risk reduction training you’ve been given. Wear all personal protective equipment appropriate for each activity, and follow your camp’s rules to the letter.

Edward A. Schirick, CPCU, CIC, CRM, is area senior vice president of RPS Bollinger Sports & Leisure in Monticello, New York, where he specializes in arranging insurance coverage and offering risk management advice for camps. Schirick is a chartered property casualty underwriter, a certified insurance counselor, and a certified risk manager. He can be reached at 877.794.3113 or Ed_Schirick@RPSins.com. Visit www.campinsurancepro.com.