Workers' compensation: Tips for the small business owner in non-construction industries

As a small business owner, the rules of Florida Workers’ Compensation can be overwhelming and confusing and may not even arise until an employee, or former employee, files a claim for benefits.

It is best practice to have policies in place so that if you are ever faced with a claim for workers’ compensation benefits, you can limit exposure as much as possible.

General tips

Construction employers who have one or more employees, including any non-exempt business owners, are required to carry workers’ compensation coverage and no more than three owners may be exempt. There is a list of trades considered to be in the construction industry at 69L-6.021 Florida Administrative Code if you are uncertain whether your business falls under such category.

All non-construction industry employers must have workers’ compensation coverage if they employ four or more employees, including any non-exempt business owners.

Tip No. 1 for a small Florida business owner is to file an exemption with the Florida Division of Workers’ compensation to exclude themselves from being counted as an “employee” which may exclude the company from the requirement to carry workers’ compensation coverage. For example, a business with three employees and one owner would be required to carry coverage if the owner does not have a valid exemption.

Tip No. 2 is to ensure your exemption remains valid, it is valid for 2 years after the effective date. An exemption can be done for any officer of a corp. or a member of an LLC.

Those with fewer than four employees are not required to carry w/c coverage but must post a clear written notice of this fact to all employees in a conspicuous location at each worksite.

One tip for employers with less than four employees is to post written notice and have employees acknowledge receipt and understanding of the employer’s notice of non-coverage via signature. One step further would be to have it in several languages, particularly Spanish and Creole as those are most prevalent in South Florida. The employer should also routinely check the exemptions and persons on payroll to ensure they continue to be eligible for non-election of benefits. I have seen employers who sometimes employ only three but at other times employ four, so they should stay on top of knowing their number of employees and obligations under the law.

It is important that all employees know the process for reporting workplace accidents. They should be required to sign a form upon hire acknowledging their understanding, written in his/her native language. Employees should be reminded of this policy throughout their tenure.

Uninsured

If you find yourself having four or more employees, and no workers compensation coverage at the time of a workplace accident, here are six tips:

1. Document the workplace accident or injury by taking photographs of the scene of the accident, equipment/object involved, and resulting injuries. Some accidents may not seem serious or may seem unrelated to work, but it is always best to have more documentation of the alleged incident to be used later.
2. Have the employee prepare a written statement of the accident as close in time to the accident as possible and to ensure it is signed and dated by them, to include the specific details of the accident and body parts they alleged to have injured. In addition to the employee statement, have any other employees/witnesses also complete a report.
3. If you are unsure of your obligations to provide medical care, contact a workers’ compensation defense firm and provide the details of the incident. Even if the injured worker has not yet retained counsel, it will make the process smoother if you have legal advice early on and prevent missteps along the way to ensure the injured worker is provided what they are entitled to. Each workplace accident is unique and may be handled differently. If your company is aware they should have had coverage at the time of the accident, send the injured worker to a clinic and continue their wages if possible.
4. Try to keep conversations with the employee over email and text instead of only over the phone or in person to have as much documentation as possible. Put together a packet with all payroll records of the employee for the thirteen weeks immediately preceding the accident (not to include the accident date), his/her employment application, all communications with the employee immediately following the accident as well as medical records received from the injured worker.
5. If you have sub-contractors, ensure all have their own workers compensation policies in effect to avoid liability (certificate of liability insurance, the information page, screen print from division of w/c proof of coverage database)
6. Try to keep a cordial relationship with the inured employee. If there was a known injury – stay in contact with the employee to see how they are doing, bring them back to work if possible, to limit exposure. If the injured employee feels they are being cared for following an injury, they are less likely to retaliate and seek counsel. If the accident and any resulting injury is not taken seriously and an employee is pressured to go back to work too quickly, they may feel unappreciated and overlooked.

Alexandra Duryea is a Practice Group Partner at Kelley Kronenberg where she assists in handling matters related to Workers’ Compensation defense.

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