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Frequently Asked Questions - Florida Department of Financial Services

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MYFLORIDACFO.COM > DIVISION > WC > EMPLOYER > FREQUENTLY ASKED QUESTIONS

Frequently Asked Questions Insurance Coverage Who needs Workers’ Compensation Coverage? Construction Employers who have 1 or more employees, including any non-exempt business owners; Non-Construction Employers who have 4 or more employees including any nonexempt business owners; Agriculture - when there are 6 regular employees and/or 12 seasonal workers who work more than 30 days during a season but no more than a total of 45 days in a calendar year Reference: Section 440.02(17), Florida Statutes Is there of list of trades that are considered to be in the Construction Industry? The list of trades that are considered to be in the construction industry is found in 69L-6.021 Florida Administrative Code. I hire sub-contractors, aren’t they responsible for their own insurance? Yes, each sub-contractor is responsible for providing Workers' Compensation insurance for their workers in the event of a work related injury, illness, or fatality. However, the primary contractor is responsible for ensuring that the sub-contractor has provided the coverage for its workers. If a worker is injured, without being protected by insurance, then the contractor becomes responsible for the payment of benefits. For more information please review Section 440.10, Florida Statutes. What does the contractor need to obtain from the sub-contractor to verify that it has coverage? Prior to the beginning of the job the contractor must obtain the following: If the sub-contractor has a Workers' Compensation insurance policy, obtain any of the following from the sub-contractor: A copy of the "Information Page" of the subcontractor’s workers' compensation insurance policy; A screen print from the Division of Workers' Compensation, Proof of Coverage database confirming that workers' compensation coverage is in effect for the subcontractor. or A Certificate of Liability Insurance and written documentation obtained either from the producer or carrier confirming that workers' compensation coverage is in effect for the subcontractor.

If the sub-contractor is a client company of an employee leasing company, you must obtain a Certificate of Liability Insurance and a list of the employees leased to the subcontractor obtained from the employee leasing company as of the date the subcontractor commenced work for the contractor on each project. If the sub-contractor has an exemption for the business owner(s) then you may obtain either a copy of the exemption from the sub-contractor or a screen print of the exemption page from the Division of Workers’ Compensation, Proof of Coverage database. For more complete information please review 69L-6.032, Florida Administrative Code. What should an Out-of-State Employer know about Florida's coverage requirements? An out-of-state employer engaged in the construction industry must immediately notify his or her insurance company and, or insurance agent that it has employees that are engaging in work in Florida. Any construction industry employer having one or more part- or full-time employees performing work in Florida is required to obtain a Florida policy through a Floridalicensed insurance company. The employer must use the Florida job classification codes, approved rates, rules, and manuals prior to beginning work in Florida. If the construction industry employer has an out-of-state policy, the insurance company must be licensed in Florida, and Florida must be listed in Section 3A of the policy. A Non-construction industry employer is required to obtain a Florida policy through a Florida-licensed insurance company once it has 4 or more employees working in Florida. For more information, please review Section 440.10(1)(g), Florida Statutes and 69L-6.019 Florida Administrative Code. If an Out of State Employer is working in Florida temporarily, what do they need to do? And what is Extraterritorial Reciprocity? Out-of-state employers whose home jurisdiction has in its statute an "extraterritorial reciprocity" clause allowing temporary employees from another jurisdiction (including Florida) to work under the "home state's" workers' compensation policy are permitted to work in Florida using the workers' compensation policy from their "home state", as long as the work is temporary in nature. Temporary is defined as no more than 10 consecutive days with a maximum of 25 total days in a calendar year. For a current list of the jurisdictions that have an extraterritorial reciprocity statute you may visit www.cbs.state.or.us/external/wcd/compliance/ecu/etsummary.html. Florida Employers who plan to work in another state temporarily may check the above listed resource in order to determine if the state in which they plan to work has a reciprocal agreement, accepting the Florida Workers’ Compensation insurance policy for temporary work. For further information please contact the State in which you plan to work for specific laws and rules that apply to their Workers’ Compensation Coverage Requirements. For more information, please review Section 440.094, Florida Statutes. Where do I find Workers ’ Compensation Insurance Coverage? Contact an insurance agent. You can also contact the following insurance agent associations: Florida Association of Insurance Agents at www.trustedchoice.com Latin American Association of Insurance Agents at (305) 477-1442 Professional Insurance Agents of Florida at www.piafl.org If you cannot obtain coverage through the standard workers' compensation market, your insurance agent may contact the Florida Workers’ Compensation Joint Underwriting Association (FWCJUA) at (941) 378-7400 or visit their website at www.fwcjua.com. The workers' compensation rates in the FWCJUA will be higher than the rates in the standard market.

By joining a commercial self-insurance fund where the members pool resources and spread liabilities for any commercial and/or casualty insurance; for additional information please contact the Florida Office of Insurance Regulation. By qualifying as an individual self-insured; for additional information, contact the Division of Workers' Compensation at (850) 413-1784. You may also consider entering into an employee leasing arrangement with a professional employer organization that has secured workers' compensation coverage on behalf of its clients. For more information, please review Section, 440.02, Florida Statutes. How much does Workers' Compensation Insurance cost? The cost of Workers' Compensation insurance is based upon 3 primary factors: the payroll for the business, the type of work performed by the employees, and the individual employer’s claims history. Premium discounts may also be available to employers. Two of the more common discounts include a 2% discount for a workplace safety program and a 5% discount for a drug free workplace program. Each of these programs must be renewed every year in order to receive the discount. Who can I contact with questions or concerns regarding risk classification codes and premium amounts? Call your insurance carrier or service representative. If you have a question regarding the risk classification codes or your Experience Modification Factor, you or your agent can call the National Council on Compensation Insurance (NCCI) at 1800-622-4123. Is it legal to call all of my workers "independent contractors" and avoid having to have Workers' Compensation Insurance for them? Florida's workers' compensation law does not allow for independent contractors in the construction industry. The person is either a business owner or an employee of a business. In the non-construction industry, there are specific criteria in the Workers’ Compensation law that identifies persons as “independent contractors”. For more information please review Section 440.02(15)d1, Florida Statutes. The ultimate decision as to independent contractor status is with the person alleged to be independent and that person is responsible for proving that they are an independent contractor for Workers’ Compensation purposes. What are the Workers' Compensation Exemption Eligibility Requirements and Information? Reference the Workers' Compensation System Guide for more detail on eligibility. How does the Division of Workers' Compensation enforce employer compliance with the law? Reference the Workers' Compensation System Guide for more detail on enforcement.

Employer - Employee Questions When one of my employees is injured who tells them of their rights and responsibilities? When an injury is reported to the carrier, the carrier is responsible for sending a notice containing their rights and responsibilities to the injured worker. This notice also contains a Fraud Statement which must be signed by the injured worker and returned to the carrier, prior to any indemnity benefits being paid. Does the injured worker pay any part of my workers' compensation insurance premium? The law is very specific on this point. It is the employer's responsibility to pay the entire premium for workers' compensation insurance coverage. For more information please review Section 440.105(4)(a)(2), Florida Statutes.

Injuries Where do I get a supply of injury report forms that I am required to complete when one of my employees is injured? Your insurance carrier is required to provide you a supply of the Form DWC-1 First Report of Injury or Illness. Forms can also be downloaded from the Florida Workers' Compensation web site Rules & Forms page. For more information please review Rule 69L-3.003(5), Florida Administrative Code. What kinds of employee injuries are covered? The law covers all accidental injuries and occupational diseases arising out of and in the course and scope of employment. This includes diseases or infections resulting from such injuries. The law also covers death resulting from such injuries within specified periods of time. Even if you do not think an injury is covered, you must still file the First Report of Injury or Illness (DWC-1) with your insurance carrier for determination of responsibility within 7 days of your first knowledge of the accident/injury. For more information please review Sections 440.02(1) & 440.16, Florida Statutes. What injuries are not covered? The law does not provide compensation for the following conditions: Mental or nervous injury due to stress, fright, or excitement; Work related condition that causes an employee to have fear or dislike for another individual because of the individual's race, color, religion, sex, national origin, age, or handicap; "Pain and suffering" has never been compensable in Florida, nor is it compensable in any other state. The employer may not sue an injured worker for causing a catastrophe nor can the injured worker sue the employer for their injury. This trade-off makes it possible for injured workers to receive immediate medical care, at no cost to the injured worker, without any consideration for who was at fault, the employer or the employee. In civil law, negligence must be established through litigation before any compensation is awarded.

For more information please review Section 440.02(1), Florida Statutes. Compensation will not be paid in several other instances: If the injury is caused by the employee's willful intention to injure or kill himself or another; If the injury is caused primarily because the employee is intoxicated or under the influence of drugs; If the injury or death of the employee is covered by the Federal Employer's Liability Act, the Longshore and Harbor Workers' Compensation Act, or the Jones Act (if the injured worker is a "seaman" or member of a crew). For more information, please visit www.dol.gov. For more information please review Section 440.09, Florida Statutes. Can an employer be liable for double compensation? An employer can be liable for double compensation if a minor child is injured while employed in violation of any of the conditions of the child labor laws of Florida. The employer alone, not the insurance carrier, is liable for up to double the normal compensation as provided by the Workers' Compensation Law. To receive further information regarding the Child Labor Law, call the Child Labor Office at (800) 2262536. For more information please review Section 440.54, Florida Statutes. As a small business owner, I fail to see how I can be sued by an injured worker if I provide all the necessary care, light duty work, and offer to retrain the employee after the injury occurs. Under the provisions of Chapter 440, Florida Statutes, an injured worker has two years from the date of the accident to file a petition for benefits with the Division of Administrative Hearings. If an employer is providing benefits and return to work options, that should be sufficient to meet the ultimate goal of returning an injured worker to gainful employment. However, an employer/carrier's definition of "necessary care" and that of an injured worker may differ. When that happens, the injured worker has no remedy except to file a petition for benefits and have a judge of compensation claims determine whether the benefits that are being provided are sufficient, or if additional benefits not being provided are required by Florida law. If the employer is providing benefits, all expenditures must be reported to the employer's workers' compensation insurance carrier for statistical purposes. If I suspect that the worker who claims to have sustained an injury is faking, what do I do? Make certain that the claim is filed and discuss the situation with your insurance carrier. If I suspect an employer should have Workers’ Compensation insurance coverage, but does not, or if I suspect fraudulent activity in a workers’ compensation claim, where do I report this? Suspected workers' compensation fraud can be reported directly to the Division of Fraud, Bureau of Workers' Compensation Fraud, 200 E. Gaines Street, Tallahassee, Florida 32399-0318, or to the toll free hotline number at 1-800-3780445. Suspected non-compliance can be reported to the Florida Division of Workers' Compensation, Bureau of Compliance's toll free hotline at 1-800-742-2214. Anonymous calls are accepted. Or complete the Non-Compliance Referral Form to report employer's who do not have workers' compensation insurance coverage. For more information please review Section 440.1051, Florida Statutes. What in the system would prevent an injured worker, who wanted to leave his job or who believes he would be "laid off" or "terminated" from claiming to be hurt, waiting out the treatment, and then try to settle? By law, pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. However, sometimes these types of claims do occur and they are sometimes settled by insurance carriers for a nominal amount of money to rid the employer/carrier of a nuisance case. For more information please review Section 440.09(1), Florida Statutes

Safety If compensation payable if an employee refuses to use a safety appliance like a hard hat, safety goggles, or fails to observe safety rules? Compensation will still be paid, but indemnity benefits (partial wage replacement) may be reduced by 25 percent if the employee knew about the safety rule prior to the accident and failed to observe the rule, or if the employee knowingly chooses not to use a safety appliance which the employer has directed him to use. For more information please review Section 440.09(5), Florida Statutes. Is there someone who can help me to establish a Safety Plan for my business? The University of South Florida Safety Florida Consultation Program has several services that are offered to Florida’s small employers. Those services include helping to establish a Safety Plan; free consultation program; and the ability to check out training videos to provide safety training to your employees. For more information please visit their website at www.usfsafetyflorida.com

Drug-Free Workplace Will becoming a drug-free workplace save me money on my insurance premium? If you implement a drug-free workplace program in accordance with the criteria set forth in s.440.102, Florida Statutes, you may be eligible for a 5 percent premium credit from your insurance carrier to your workers' compensation insurance premium. In addition to the premium credit, having a Workers' Compensation DrugFree Workplace Program may make your workplace safer, resulting in fewer accidents, which may reduce your workers' compensation costs. For more information please review Sections 440.101 & 440.102, Florida Statutes. Am I required to become a carrier certified drug-free workplace? Becoming a carrier certified drug-free workplace is voluntary. However, without the certification, you would not be eligible for any of the benefits provided under this program. For more information please review Sections 440.101 & 440.102, Florida Statutes. Under the Workers’ Compensation Drug-Free Workplace Program, can I conduct random drug testing of my employees? In addition to the situations in which testing is mandatory, the law does not prohibit a private employer from conducting random testing or any other lawful testing of employees. A public employer may institute random testing of employees in "safety sensitive" or "special risk" occupations. For more information please review Sections 440.101 & 440.102, Florida Statutes. Can I use a breathalyzer as a valid drug test? Under the Workers' Compensation Drug-Free Workplace Program, the use of a breathalyzer cannot be used as a testing method for initial or confirmation tests. For more information please review Sections 440.101 & 440.102, Florida Statutes. What if an employee refuses to take a drug test? If an injured worker refuses to submit to a test for drugs or alcohol, the employee may forfeit eligibility for medical and indemnity benefits. If an employee or job applicant refuses to submit to a drug test, the employer is permitted to discharge or discipline the employee or may refuse to hire the applicant (if specified in the written Drug-Free Workplace Policy), since, by law, refusal to submit to a drug test is presumed to be a positive test result. For more information please review Sections 440.101, 440.102 & 440.09(7)(d), Florida Statutes. If a terminated employee files for unemployment benefits (in Florida these benefits are called "Re-employment Benefits") may I inform the adjudicator that the employee was terminated as a result of a positive drug test? The adjudicator is bound to maintain this information confidential under s. 443.1715(3)(b), Florida Statutes, until introduced into the public record pursuant to a hearing conducted under s.443.151(4), Florida Statutes. Under all other instances employers may not release any information concerning drug test results obtained pursuant to section s.440.102(8), Florida Statutes, unless such release is compelled by an administrative law judge, a hearing officer, or a court of competent jurisdiction or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. For more information please review Sections 440.101 & 440.102(8), Florida Statutes. Can I post the results of my employees’ drug tests? All information, interviews, reports, statements, memoranda and drug test results, written or otherwise, received by the employer through a drug testing program is confidential and cannot be posted in any public manner. For more information please review Sections 440.101 & 440.102, Florida Statutes. Am I responsible for payment for services when my employee participates in an Employee Assistance Program (EAP)? No, but if you choose to pay for an Employee Assistance Program, you have the right to choose the facility providing treatment. If an employee does participate in an Employee Assistance Program, you, the employer, are required to extend the same considerations as reflected under the federal guidelines established for the Americans with Disabilities Act and the Family and Medical Leave Act. For more information please review Sections 440.101 & 440.102, Florida Statutes. How many days does the employee have to re-test the specimen if he or she wishes to contest a positive test result? During the 180 day period after written notification of a positive test result, the employee who has provided the specimen shall be permitted by the employer to have a portion of the specimen re-tested, at the employee's expense, an Agency for Health Care Administration (AHCA) licensed or a USHHS certified laboratory of his or her choice. For more information please review Sections 440.101 & 440.102(5)(g), Florida Statutes. Who pays for the drug test? The employer is responsible for payment of all drug tests they may require. However, if an employee wishes to have the specimen re-tested at a laboratory certified by the Agency for Healthcare Administration (AHCA), it will be at the employee's expense. If the workers' compensation insurance carrier uses a positive test result to determine the compensability of a claim, the carrier would be responsible to cover the costs of the test. For more information please review Sections 440.101 & 440.102, Florida Statutes. Is there someone who can help us set up a Drug Free Workplace? Yes, the National Drug-Free Workplace Alliance offers Florida’s employers assistance in establishing Drug Free Workplaces. For more information please visit their website at www.ndwa.org or www.dfaf.org.

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Frequently Asked Questions - Florida Department of Financial Services

MYFLORIDACFO.COM > DIVISION > WC > EMPLOYER > FREQUENTLY ASKED QUESTIONS Frequently Asked Questions Insurance Coverage Who needs Workers’ Compensatio...

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