This issue comes up a lot in my practice and it can be both confusing and frustrating for individuals hurt on the job and then told after-the-fact by their employer there is no insurance coverage to provide medical and disability benefits. This leaves the injured worker to fend for themselves either out-of-pocket or on their personal health insurance plan, if available.
Some of the confusion arises from sources on the internet claiming that workers’ compensation coverage is mandatory for all employers. This isn’t true. Coverage is mandatory when an employer “has in service five or more workmen or operatives regularly in the same business or establishment under any contract of hire, express or implied.” This means an employer can effectively be exempt if their operation is small enough that it uses fewer than five people.
The confusion comes in when an injured worker knows there are more than five people working in combination for their employer either on another job site, in a different type of business owned by the same person or knows of other jobs in other states being performed by the same employer. There are also seasonal operations, and those employees may be counted toward the five total.
Making the determination of total number of workmen or operatives is fact intensive. When an employer’s number of employees fluctuates and hovers close to the five or more definitions, the mandatory coverage threshold is met when an employer’s number reaches five or more, and mandatory coverage does not stop if the numbers fall back below five employees temporarily.
The term “regularly” in this setting does not mean constantly or continuously. The work performed can be intermittent and yet still be considered regular.
Knowing which individuals count toward the requisite “five or more” is critical and a factual determination of how many people are engaged in the operation under a contract of hire will determine whether workers’ compensation coverage is mandatory for an employer or not.
If you are hurt on the job and told there is a question about coverage for your injuries, call an experienced workers’ compensation attorney to determine if you are entitled to benefits. Injury lawyers know how to gather the facts and pursue your rights and benefits. Let us fight for you. You owe nothing unless we recover benefits for you.