Who is NOT covered by Workers' Compensation?

For the last few months I have been researching the public policy criteria for determining who is  covered by workers’ compensation and who is not.  From a public policy perspective, an accurate statement of "percentage of the employed labour force covered by workers' compensation" is an important foundational statistic to any public policy evaluation or reform.  Some data do exist but, so far, it appears:

• Stated workers’ compensation coverage rates are likely over-estimated

• Few jurisdictions provide actual counts (or direct, well documented estimates) of workers mandatorily covered

• No jurisdiction publishes counts of those who voluntarily “opt in” to coverage

• No jurisdiction publishes counts of persons (as opposed to the number of waivers issued) exempted by waivers, elections, or opt-out provisions

• Public policy justifications for exclusions or exemptions are almost non-existent

• Where justifications are offered, they primarily rest on the historical evolution of workers' compensation coverage

While there are some published coverage estimates based on workers’ compensation data regarding the numbers of workers covered, most do not explain their methodology.  Many rely on external data sources (unemployment insurance data, employment surveys).  

Even the wording surrounding coverage in workers’ compensation is not consistent.  In some cases, certain industries, occupations, worker categories, or employers are “exempted”, others “excluded”, and still others may “seek a waiver” from the otherwise universal or sectoral coverage rules.  Often, there are rules that allow some exempted or excluded categories to apply for coverage on an optional or “elective” basis.  Rarely, however, are detailed estimates of number or proportions of the work force within and beyond coverage provided at the state or provincial level.    

The inconsistencies in workers’ compensation coverage rules have real-life implications for those in the scope of coverage and outside it.  The lack of consistency in coverage rules may lead to erroneous assumptions that can leave workers and their families destitute and employers without the protection of the workers’ compensation exclusive remedy.  Worse yet, the lack of workers’ compensation coverage externalizes health care costs of work-related injuries to other medical plans (private and public) thus raising costs for the funders (including taxpayers as well as individual and group disability insurance plans). 

Workers’ compensation premiums are often justified as a means of confining the financial costs of work-related injury, illness and disease to the industry that gives rise to them; if workers’ compensation costs rise, there is an incentive to greater investment in safety and prevention.  For workers and employers outside the workers’ compensation scope of coverage, those incentives may be less clear and far less direct.  More importantly, those financial costs for wage replacement and medical aid (diagnostics, treatment, rehabilitation) are externalized to others.  If someone else bears the financial cost of work-related injury, why bother invest in prevention?

I’ve asked several government policy branches responsible for health and workers’ compensation to provide their public policy rationale for limiting the scope of workers’ compensation coverage.  The few formal responses I have received so far are like this one (I won’t name the jurisdiction):

“Many of the [excluded] industries listed…  were deemed ‘low risk’ while others actively lobbied to be exempt from coverage.”

“Low risk” is not defined and “active lobbying” implies that those with good lobbyists are the only ones likely to be excluded. 

In my research so far, I have examined about 70 jurisdictions in Canada, the U.S. and Australia.  The public policy approaches for determining who is and who is not in the scope of coverage fall into the following general categories of workers’ compensation coverage:

• General inclusion for all industries (or classes of industry) with broad exclusions (Alberta – Workers’ Compensation Regulation Schedule A [Alberta Regulation 325/2002])

• Mandatory universal inclusion with narrow, specific exclusions (British Columbia-Assessment Practice Directive 1-2-1(A) - Exemptions from coverage)

• Optional inclusion (Texas, for example)

There are three public policy approaches to those excluded from coverage:

• Hard exclusion:  NO option to come under coverage for any reason
• Soft exclusion (Voluntary inclusion):   Option for exempted or excluded to “opt in” or enter voluntarily into workers’ compensation coverage
• Waiver exclusion:  Ability to “opt out” of coverage if certain conditions are met

The following list provides some of the occupations and industries that may be excluded from workers’ compensation coverage (NOTE: Many of those occupations/industries in this list are in fact mandatorily covered in some or most jurisdictions).  The list is not comprehensive nor is it universal.  The jurisdictions mentioned are illustrative only; others may or may not have similar (or more or less restrictive) provisions for a given occupation or industry.  This listing is provided here to illustrate the range of exclusions and the variability in the criteria among various jurisdictions:

Agricultural / farm workers /harvest help/Gardeners – Exempt if 5 or fewer in Florida, if family farm and less than  $8k payroll in Minnesota

Babysitters and Child Care -  Child care before or after school of less than 15 hours per week is optional in British Columbia but mandatory if more than 15 hours per week.       

Cab / vehicle for hire drivers – Independent taxi drivers exempt in Massachusetts. Taxicab drivers whose compensation is by contractual arrangement are exempt in Alaska

Casual employees  - Exempt if less than 26 hours weekly in Connecticut,  if less than 20 consecutive days in Kentucky

Cleaning persons/ Private household workers-  Household or domestic employees whose typical duties include house cleaning and yard work are exempt in Montana. Exempt if less than 20 hrs/week and 6 less than 6 weeks in any 13 week period in South Dakota.

Commission-paid salespersons—This is often listed as a separate category from real estate and insurance commissioned sales but criteria vary.                 

Corporate Officers/Exec Officers / Directors /Major Shareholders – Exemption formulas vary widely.  Elective for up to 10 shareholders with 10% or more of shares in Michigan, 5% ownership in Pennsylvania, 25% share ownership in Nebraska           

Cosmetologists, Barbers- exempt in Montana

Domestic servants – Exemptions from coverage if less than 52 hours in  90 days in California, under 240 hours per quarter in DC, if less than $160 by 1 employer in any 3-month period in Ohio

Entertainers – Musicians exempt pursuant to a service contract in Louisiana, Entertainers in Nevada are exempt.       

Family Farm corporations/ Family enterprises—often listed as optional or elective but coverage may be required for farm hands if a specified number of employees or payroll value is exceeded   

Financial Institutions (Banks)- Banking is exempt from coverage in Manitoba, Ontario, Alberta            

Illegal enterprises or occupations—This is not often specified but may turn on the definition of “illegal”.  Specifically excluded in South Dakota

Independent Contractors-  Often excluded but specific rules may apply for construction; special certification may be requires for exemption as in Montana 

"Less than" exemptions  - Exempt for firms with less than a stated number of employees; 3 in Michigan, 4 in South Carolina, 5 in Missouri. [ NOTE:  Special rules may apply for construction firms]

Maritime workers- Exempt in New Jersey        

Municipal employees – Exempt for firefighters and police cities <500k illinois="" in="" span="">

Newspaper/publication vendors/ distributors—This is a controversial area particularly in Kentucky where a recent law requiring mandatory coverage was overturned             

Non-profit, religious, charitable organizations – This is a common category but there are specific criteria in most jurisdictions     

Outworkers - Exempt if less than 26 hours weekly in  Connecticut.

Owner operators – Truck driver owner operators are exempt in South Carolina.  Exempt in South Dakota if certified as Independent Operators by the Department of Labor.   

Professional sport players / athletes – Exempt in Florida, hockey teams exempt in Rhode Island, Professional sports competitors or athletes are exempt in British Columbia (note, however, managers , coaches, administrators are mandatorily covered).

Real estate agents/licensees/ brokers (commission) and Insurance Agents- licensed- commonly exempted from coverage. 

Sawmill or logging operators - Exempt if  >10 employees who operate less than 60 days over a 6 month period in North Carolina

Self-employed/ Independent Contractor - Very common exclusion but often with optional or voluntary inclusions offered.

Sole proprietorship or partnership (Sole trader in Australia)  - Exempt in most places but in Tennessee, in construction, sole proprietors and partners are required to cover themselves or be listed on the State Exemption Registry

State / provincial employees    - Voluntary for state and political subdivisions in Tennessee, exempt for elected or appointed officials in South Carolina

Teachers – Most teachers in Alberta and Saskatchewan are exempt.    

Volunteer first responders, law enforcement, patrol members or rescue workers  -specifically covered in Minnesota but certain groups like ski patrol persons exempt in North Carolina. 

There are also groups of individuals that may be excluded from some or all coverage under workers’ compensation.  Undocumented workers have been denied coverage for vocational rehabilitation, for example, because of their illegal immigration status  (Ortiz v. Cement Prod., Inc., 708 N.W.2d 610 (Neb. 2005)).  Workers in concurrent employment may have limited coverage (see http://workerscompperspectives.blogspot.ca/2015/06/will-workers-compensation-cover-income.html and "Moonlighters Wanted", Perspectives Magazine, IAIABC, November 2016 ).

Beyond the problems for workers and employers associated with the lack of coverage for certain industries and occupations, the absence of concise, comparative numeric data leaves policy makers to make important decisions on shaky assumptions.  Finding an accurate answer to the question "What percentage of the employed labour force covered by workers' compensation?"  should not depend entirely on indirect calculations.  "Employment" and "employed labour force" are frequently sampled and reported, so choosing a recognized denominator should be straightforward.  In states like New Mexico or Oregon with direct worker premiums or per capita payroll charges for workers' compensation, calculating the numerator should be trivial.  Unfortunately most jurisdictions only collect payroll not employment data so no direct numerator data is available to them.  

In the interests of good public policy and transparency, jurisdictional reporting of the percentage of the employed labour force covered and not covered by workers' compensation should be improved and standardized.  At a minimum, each jurisdiction should be report the number and percentage of employed labour force covered, the number of firms and associated workers covered by "opt in" or voluntary coverage provisions, and the number of firms and associated workers exempted or excluded by waiver or other application process.