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(125th General Assembly)
(Amended Substitute House Bill Number 183)
AN ACT
To amend sections 121.083, 3781.10, 3781.19, 4123.01, and 4123.291; to enact new sections 4104.41, 4104.42, 4104.43, 4104.44, and 4104.45 and sections 4125.01
to 4125.09 and 4125.99; and to repeal sections 4104.41, 4104.42, 4104.43, 4104.44, 4104.45, and 4104.47 of the Revised Code and to amend Section 3 of Sub. H.B. 75 of the 124th General Assembly to
register professional employer organizations for
purposes of enforcing compliance with workers'
compensation laws, to extend the time period wherein the Administrator of Workers' Compensation is permitted to grant immediate allowance of specified medical conditions, to exclude from required workers' compensation coverage an individual incorporated as a corporation, and to adopt a new Ohio pressure piping law.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 121.083, 3781.10, 3781.19, 4123.01, and 4123.291 be amended and new sections 4104.41, 4104.42, 4104.43, 4104.44, and 4104.45 and sections
4125.01, 4125.02, 4125.03, 4125.04, 4125.05, 4125.06, 4125.07,
4125.08, 4125.09, and
4125.99 of the Revised Code be enacted to read as
follows:
Sec. 121.083. The superintendent of the division
of industrial compliance in the department of
commerce shall: (A) Administer and enforce the general laws of this state
pertaining to buildings,
pressure piping, boilers, bedding, upholstered furniture, and stuffed
toys, steam engineering, elevators, plumbing, licensed occupations regulated
by the department, and travel agents, as they apply to plans review,
inspection, code enforcement, testing, licensing, registration, and
certification. (C)(B) Collect and collate statistics as are
necessary.
(D)(C) Examine and license persons who desire to act as steam
engineers, to operate steam boilers, and to act as inspectors of
steam boilers, provide for the scope, conduct, and time of such
examinations, provide for, regulate, and enforce the renewal and
revocation of such licenses, inspect and examine steam boilers
and make, publish, and enforce rules and orders for
the construction, installation, inspection, and operation of
steam boilers, and do, require, and enforce all things necessary
to make such examination, inspection, and requirement efficient.
(E)(D) Rent and furnish offices as needed in cities in this
state for the conduct of its affairs.
(F)(E) Oversee a
chief of construction and compliance, a chief of operations and maintenance, a
chief of licensing and certification, and other designees appointed by the
director of commerce to perform the duties described in this section.
(F) Enforce the rules the board of building standards adopts pursuant to division (A)(2) of section 4104.43 of the Revised Code under the circumstances described in division (D) of that section.
(G) Accept submissions, establish a fee for submissions, and review submissions of certified welding and brazing procedure specifications, procedure qualification records, and performance qualification records for building services piping as required by section 4104.44 of the Revised Code.
Sec. 3781.10. The board of building standards shall: (A) Formulate and adopt rules governing the erection,
construction, repair, alteration, and maintenance of all
buildings
or classes of buildings specified in section 3781.06 of
the
Revised Code, including land area incidental thereto, the
construction of industrialized units, the installation of
equipment, and the standards or requirements for materials to be
used in connection therewith. The standards shall relate to the
conservation of energy in and to the safety and sanitation of
such
buildings. The rules shall be the lawful minimum
requirements
specified for such buildings or industrialized
units, except that
no rule, except as provided in division (C) of
section 3781.108 of
the Revised Code, which specifies a higher
requirement than is
imposed by any section of the Revised Code
shall be enforceable;
the rules shall be acceptable as complete
lawful alternatives to
the requirements specified for such
buildings or industrialized
units in any section of the Revised
Code; and the board shall on
its own motion, or on application
made under sections 3781.12 and
3781.13 of the Revised Code,
formulate, propose, adopt, modify,
amend, or repeal the rules to
the extent necessary or desirable to
effectuate the purposes of
sections 3781.06 to 3781.18 of the
Revised Code. (B) Formulate and report to the general assembly such
amendments in existing statutes relating to the purposes declared
in section 3781.06 of the Revised Code as public health and
safety
and the development of the arts require and such
additional
legislation as it recommends with a view to carrying
out fully, in
statutory form, the purposes declared in such
section; and prepare
and submit to the general assembly a summary
report of the number,
nature, and disposition of the petitions
filed under sections
3781.13 and 3781.14 of the Revised Code; (C) Determine by rule, on its own motion or on application
made under sections 3781.12 and 3781.13 of the Revised Code, and
after thorough testing and evaluation that any particular
fixture,
device, material, process of manufacture, manufactured
unit or
component, method of manufacture, system, or method of
construction, complies with performance standards adopted
pursuant
to section 3781.11 of the Revised Code, having regard to
its
adaptability for safe and sanitary erection, use, or
construction,
to that described in any section of the Revised
Code, wherever the
use of a fixture, device, material, method of
manufacture, system,
or method of construction which is described
in such section of
the Revised Code, is permitted by law; and on
like application
amend or annul any such rule or issue an
authorization for the use
of a new material or manufactured unit;
and no department,
officer, board, or commission of the state
other than the board of
building standards or the board of
building appeals shall permit
the use of any fixture, device,
material, method of manufacture,
newly designed product, system,
or method of construction at
variance with what is described in
any rule adopted or
authorization issued by the board of building
standards or in any
section of the Revised Code. Nothing in this
section shall be
construed as requiring approval, by rule, of
plans for an
industrialized unit that conforms with the rules
adopted by the
board of building standards pursuant to section
3781.11 of the
Revised Code. (D) Recommend to the bureau of workers' compensation, the
director of commerce, or any other department, officer, board,
or
commission of the state, and to legislative authorities and
building departments of counties, townships, and municipal
corporations, the making, amending, fixing, or ordaining by such
appropriate action as such state, county, township, or municipal
authorities may be empowered by law or the constitution to take,
of such rules, codes, or standards as shall tend to carry out the
purposes declared in section 3781.06 of the Revised Code, with a
view to securing uniformity of state administrative ruling; and
local legislation and administrative action; (E) Certify municipal, township, and county building
departments to exercise enforcement authority, to accept and
approve plans and specifications, and to make inspections,
pursuant to sections 3781.03 and, 3791.04, and 4104.43 of the Revised Code. The board also shall certify personnel of municipal,
township, and county building departments, and persons and
employees of persons, firms, or corporations as described in
divisions (E)(1) and (2) of this section, to exercise enforcement
authority, to accept and approve plans and specifications, and to
make inspections, pursuant to sections 3781.03 and, 3791.04, and 4104.45 of the
Revised Code. The board shall specify, in rules adopted pursuant
to Chapter 119. of the Revised Code, the requirements that shall
be satisfied for certification purposes, which requirements shall
be consistent with this division. Except as otherwise provided
in
this division, the requirements shall include, but are not
limited
to, the satisfactory completion of an initial examination
and, in
order to remain certified, the completion of a specified
number of
hours of continuing building code education within each
three-year
period following the date of certification. In
adopting the
requirements, the board shall not specify less than
thirty hours
of continuing building code education within a
three-year period;
shall provide that continuing education credits, and
certification
issued, by the council of American building
officials, national
model code organizations, and agencies or
entities recognized by
the board, are acceptable for purposes of
this division; and shall
specify requirements that are
compatible, to the extent possible,
with requirements established
by the council of American building
officials and national model
code organizations. The board shall
establish and collect a
certification and renewal fee for building
department personnel,
and persons and employees of persons, firms,
or corporations as
described in divisions (E)(1) and (2) of this
section, certified
pursuant to this division. All individuals certified pursuant to this division shall
complete the number of hours of continuing building code
education
that the board requires or, for failure to do so,
forfeit their
certifications. This division does not require or authorize the
certification
by the board of personnel of municipal, township,
and county
building departments, and persons and employees of
persons, firms,
or corporations as described in divisions (E)(1)
and (2) of this
section, whose responsibilities do not include
the exercise of
enforcement authority, the approval of plans and
specifications,
or the making of inspections, under the Ohio
building code. (1) Enforcement authority for approval of plans and
specifications may be exercised, and plans and specifications may
be approved, on behalf of a municipal corporation, township, or
county, by any of the following who are certified by the board of
building standards: (a) Officers or employees of the municipal corporation,
township, or county; (b) Persons, or employees of persons, firms, or
corporations, when such persons, firms, or corporations are under
contract to furnish architectural or engineering services to the
municipal corporation, township, or county, and such authority is
exercised pursuant to such contract; (c) Officers or employees of any other municipal
corporation, township, county, health district, or other
political
subdivision, or persons or employees of persons, firms,
or
corporations under contract with the same pursuant to division
(E)(1)(b) of this section, when such other municipal corporation,
township, county, health district, or other political subdivision
is under contract to furnish architectural or engineering
services
to the municipal corporation, township, or county, and
such
authority is exercised pursuant to such contract. (2) Enforcement authority for inspections may be
exercised,
and inspections may be made, on behalf of a municipal
corporation,
township, or county, by any of the following who are
certified by
the board of building standards: (a) Officers or employees of the municipal corporation,
township, or county; (b) Persons, or employees of persons, firms, or
corporations, when such persons, firms, or corporations are under
contract to furnish inspection services to the municipal
corporation, township, or county, and such authority is exercised
pursuant to such contract; (c) Officers or employees of any other municipal
corporation, township, county, health district, or other
political
subdivision under contract to furnish inspection
services to the
municipal corporation, township, or county, when
such authority is
exercised pursuant to such contract. (3) Municipal, township, and county building departments
shall have jurisdiction within the meaning of sections 3781.03
and,
3791.04, and 4104.43 of the Revised Code, only with respect to the types
of
buildings and subject matters as to which they have been
certified
under this section and as to which such certification
remains in
effect. (4) Such certification shall be upon application by the
municipal corporation, the board of township trustees, or the
board of county commissioners and approval of such application by
the board of building standards. Such application shall set
forth: (a) The types of building occupancies as to which the
certification is requested; (b) The number and qualifications of the staff composing
the
building department; (c) The names, addresses, and qualifications of persons,
firms, or corporations contracting to furnish work or services
pursuant to divisions (E)(1)(b) and (2)(b) of this section; (d) The names of other municipal corporations, townships,
counties, health districts, or other political subdivisions
contracting to furnish work or services pursuant to divisions
(E)(1)(c) and (2)(c) of this section; (e) The proposed budget for the operation of such
department. (5) The board of building standards shall adopt rules
governing: (a) The certification of building department personnel and
of those persons and employees of persons, firms, or corporations
exercising authority pursuant to divisions (E)(1) and (2) of this
section. Any employee of the department or person who contracts
for services with the department is disqualified from performing
services for the department when the same would require the
employee or person to
pass upon, inspect, or otherwise exercise
any authority given by
the Ohio building code over any labor,
material, or equipment
furnished by the employee or person for the
construction,
alteration, or maintenance
of a building or the
preparation of working drawings or
specifications for work within
the jurisdictional area of the
department. The department shall
provide other similarly
qualified personnel to enforce the
requirements of the Ohio
building code as it pertains to such
work. (b) The minimum services to be provided by a certified
building department. (6) Such certification may be revoked or suspended with
respect to any or all of the building occupancies to which it
relates on petition to the board of building standards by any
person affected by such enforcement or approval of plans, or by
the board on its own motion. Hearings shall be held and appeals
permitted on any such proceedings for certification or for
revocation or suspension of certification in the same manner as
provided in section 3781.101 of the Revised Code for other
proceedings of the board of building standards. (7) Upon certification, and until such authority is
revoked,
county and township building departments shall enforce
such rules
over those occupancies listed in the application
without regard to
limitation upon the authority of boards of
county commissioners
under Chapter 307. of the Revised Code or
boards of township
trustees under Chapter 505. of the Revised
Code. (F) Conduct such hearings, in addition to those required
by
sections 3781.06 to 3781.18 and 3791.04 of the Revised Code,
and
make such investigations and tests, and require from other
state
departments, officers, boards, and commissions such
information as
the board considers necessary or desirable in
order to assist it
in the discharge of any duty or in the
exercise of any power
mentioned in this section or in sections
3781.06 to 3781.18 and,
3791.04, and 4104.43 of the Revised Code; (G) Formulate rules and establish reasonable fees for the
review of all applications submitted where the applicant applies
for authority to use a new material, assembly, or product of a
manufacturing process. The fee established shall bear some
reasonable relationship to the cost of such review or testing of
the materials, assembly, or products submitted and notification
of
approval or disapproval as provided in section 3781.12 of the
Revised Code. (H) Compile and publish, in the form of a model code,
rules
pertaining to one-family, two-family, and three-family
dwelling
houses that any municipal corporation, township,
or county may
incorporate into its building code; (I) Cooperate with the director of job and family services
when the
director promulgates rules pursuant to section 5104.05 of
the
Revised Code regarding safety and sanitation in type A family
day-care homes; (J) Adopt rules to implement the requirements of section
3781.108 of the Revised Code.
Sec. 3781.19. There is hereby established in the
department of commerce a board of building appeals
consisting of five members who shall be appointed by the
governor with the advice and consent of the senate. Terms of
office shall be for four years, commencing on the fourteenth day
of October and ending on the thirteenth day of October. Each
member shall hold office from the date of appointment until
the end of the term for which the member was appointed. Any
member
appointed to fill a vacancy occurring prior to the expiration of
the term for which the member's predecessor was appointed
shall hold
office for the remainder of such term. Any member shall continue
in office subsequent to the expiration date of the member's
term until a successor takes office, or until a period of
sixty days has
elapsed, whichever occurs first. One member shall be an
attorney-at-law, admitted to the bar of this state and of the
remaining members, one shall be a registered architect and one
shall be a professional engineer, each of whom shall be duly
licensed to practice their respective professions in this state, one
shall be a fire prevention officer qualified
under section 3737.66 of the Revised Code, and
one shall be a person with recognized ability in the
plumbing or pipefitting profession.
No member of the board of building standards shall be a member of
the board of building appeals. Each member shall be paid an
amount fixed pursuant to Chapter 124. of the Revised Code per
diem. The department shall provide and
assign to the board such employees as are required by the board
to perform its functions. The board may adopt its own rules of
procedure not inconsistent with sections 3781.06 to 3781.18 and
3791.04 of the Revised Code, and may change them in its
discretion. The board may establish reasonable fees, based on
actual costs for administration of filing and processing, not to
exceed two hundred dollars, for the costs of filing and
processing appeals. A full and complete record of all
proceedings of the board shall be kept and be open to public
inspection. In the enforcement by any department of the state or any
political subdivision of this chapter and Chapter 3791., and
sections 3737.41, 3737.42,
4104.02, 4104.06, 4104.43, 4104.44,
4104.45, 4105.011, and
4105.11 of the Revised Code and any rule made thereunder, such
department is the agency referred to in sections 119.07, 119.08,
and 119.10 of the Revised Code. The appropriate municipal or county board of appeals, where
one exists, certified pursuant to section 3781.20 of the Revised
Code shall conduct the adjudication hearing referred to in
sections 119.09 to 119.13 and required by section 3781.031 of the
Revised Code. If there is no certified municipal or county board
of appeals, the board of building appeals shall conduct the
adjudication hearing. If the adjudication hearing concerns
section 3781.111 of the Revised Code or any rule made thereunder,
reasonable notice of the time, date, place, and subject of the
hearing shall be given to any local corporation, association, or
other organization composed of or representing handicapped
persons, as defined in section 3781.111 of the Revised Code, or
if there is no local organization, then to any statewide
corporation, association, or other organization composed of or
representing handicapped persons. In addition to the provisions of Chapter 119. of the
Revised Code, the municipal, county, or state board of building
appeals, as the agency conducting the adjudication hearing, may
reverse or modify the order of the enforcing agency if it finds
that the order is contrary to this chapter and Chapters 3791. and 4104., and
sections 3737.41, 3737.42,
4105.011 and 4105.11 of the
Revised
Code and any rule made thereunder or to a fair interpretation or
application
of such laws or any rule made thereunder, or that a variance from the
provisions of such laws or any rule made thereunder, in the
specific case, will not be contrary to the public interest where
a literal enforcement of such provisions will result in
unnecessary hardship. The state board of building appeals or a certified
municipal or county board of appeals shall render its decision
within thirty days after the date of the adjudication hearing.
Following the adjudication hearing, any municipal or county
officer, official municipal or county board, or person who was a
party to the hearing before the municipal or county board of
appeals may apply to the state board of appeals for a de novo
hearing before the state board, or may appeal directly to the
court of common pleas pursuant to section 3781.031 of the Revised
Code. In addition, any local corporation, association, or other
organization composed of or representing handicapped persons as
defined in section 3781.111 of the Revised Code, or, if no local
corporation, association, or organization exists, then any
statewide corporation, association, or other organization
composed of or representing handicapped persons may apply for the
de novo hearing or appeal to the court of common pleas from any
decision of a certified municipal or county board of appeals
interpreting, applying, or granting a variance from section
3781.111 of the Revised Code and any rule made thereunder.
Application for a de novo hearing before the state board shall be
made no later than thirty days after the municipal or county
board renders its decision. The state board of building appeals or the appropriate
certified local board of building appeals shall grant variances
and exemptions from the requirements of section 3781.108 of the
Revised Code in accordance with rules adopted by the board of
building standards pursuant to division (J) of section 3781.10 of
the Revised Code. The state board of building appeals or the appropriate
certified local board of building appeals shall, in granting a
variance or exemption from section 3781.108 of the Revised Code,
in addition to any other considerations the state or the
appropriate local board determines appropriate, consider the
architectural and historical significance of the building.
Sec. 4104.41. As used in sections 4104.41 to 4104.45 of the Revised Code:
(A) "Building services piping" means piping systems and their component parts that are part of a building system and that promote the safe, sanitary, and energy efficient occupancy of a building. "Building services piping" includes, but is not limited to, cold and hot potable water distribution for plumbing fixtures; sanitary lines leading from plumbing fixtures; nonflammable medical gas systems; medical oxygen systems; medical vacuum systems; fire protection piping systems and compressed air in dry systems; refrigeration, chilled water, condenser, cooling tower water, brine, and water/antifreeze systems; steam, steam condensate, and hot water piping systems; heating and cooling piping systems; and fuel oil piping and fuel gas piping for heating, cooling, and cooking applications.
(B) "Power piping" means piping systems and their component parts, that are not building services piping systems, and that may be installed within electric power generating stations, industrial and institutional plants, utility geothermal heating systems, and central and district heating and cooling systems. "Power piping" includes, but is not limited to, piping used in the distribution of plant and process steam at boiler pressures greater than fifteen pounds per square inch gauge, high temperature water piping from high pressure and high temperature boilers, power boiler steam condensate piping, high pressure and high temperature water condensate piping, and compressed air and hydraulic piping upstream of the first stop valve off a system distribution header.
(C) "Process piping" means piping systems and their component parts, that are not building services or power piping systems, and that may be installed in petroleum refineries, chemical, pharmaceutical, textile, paper, semiconductor, and cryogenic plants, and related processing plants and terminals.
Sec. 4104.42. (A) The owner of any power piping or process piping system shall ensure that all of the following are performed in compliance with applicable sections of the B31 standards contained in the code for pressure piping, published by the American society of mechanical engineers:
(1) The design, fabrication, assembly, installation, testing, examination, and inspection of power and process piping systems;
(2) Qualification of personnel and qualification of welding and brazing procedures;
(3) The implementation of an inspection program.
(B) The owner of a power piping or process piping system shall do both of the following:
(1) Maintain for five years complete records documenting the design, examination, and testing of the piping system that include all of the following: (a) The specific edition of the code for pressure piping used in the design; (b) The design assumptions; (c) The calculations, piping material specifications, and construction documents for the piping; (d) The records of piping alterations; (e) The piping examination and inspection records.
(2) Disclose the types and quantities of flammable, combustible, or hazardous materials proposed to be used in the facility to the building and fire code enforcement authorities who have inspection authority to enable those authorities to determine compliance with the rules the board of building standards adopts pursuant to section 3781.10 of the Revised Code and the rules the state fire marshal adopts pursuant to section 3737.82 of the Revised Code.
(C) No person or state agency shall require that the records described in division (B)(1) of this section be submitted to the division of industrial compliance in the department of commerce or to a certified building department for approval. (D) Nothing in this section limits the application of Chapters 4703. and 4733. of the Revised Code.
Sec. 4104.43. (A)(1) The board of building standards shall adopt rules establishing requirements for the design, installation, inspection of and design review procedure for building services piping.
(2) The board of building standards shall adopt rules establishing requirements for the design, installation, inspection of and design review procedure for nonflammable medical gas, medical oxygen, and medical vacuum piping systems.
(B) A municipal, township, or county building department certified under division (E) of section 3781.10 of the Revised Code shall enforce the rules the board adopts pursuant to division (A)(2) of this section if that building department requests and obtains special certification to enforce those rules.
(C) In a health district where no municipal, township, or county building department is specially certified under division (B) of this section, an employee of the health district shall enforce the rules adopted pursuant to division (A)(2) of this section if both of the following conditions are satisfied:
(1) The health district employee requests and obtains special certification by the board to enforce those rules.
(2) The health district notifies the superintendent of the division of industrial compliance in the department of commerce that the health district's specially certified employee shall enforce those rules.
(D) In a jurisdiction where enforcement authority as described in divisions (B) and (C) of this section does not exist, the superintendent of the division of industrial compliance shall enforce the rules the board adopts pursuant to division (A)(2) of this section.
Sec. 4104.44. All welding and brazing of metallic piping systems shall be performed in accordance with section IX of the boiler and pressure vessel code, published by the American society of mechanical engineers. The owner shall maintain, at the job site, the certified performance qualification records of all welders and brazers employed at the facility. The owner shall submit copies of all certified welding and brazing procedure specifications, procedure qualification records, and performance qualification records for building services piping for review to the superintendent of the division of industrial compliance in the department of commerce in accordance with rules the superintendent adopts. The submission shall be accompanied by the fee the superintendent establishes.
Sec. 4104.45. A person who inspects the installation of or witnesses the testing of any nonflammable medical gas and vacuum piping system shall be certified to do so pursuant to division (E) of section 3781.10 of the Revised Code.
Sec. 4123.01. As used in this chapter: (A)(1) "Employee" means: (a) Every person in the service of the state, or of any
county, municipal corporation, township, or school district
therein, including regular members of lawfully constituted police
and fire departments of municipal corporations and townships,
whether paid or volunteer, and wherever serving within the state
or on temporary assignment outside thereof, and executive officers
of boards of education, under any appointment or contract of hire,
express or implied, oral or written, including any elected
official of the state, or of any county, municipal corporation, or
township, or members of boards of education. As used in division (A)(1)(a) of this section, the term "employee" includes the following persons when
responding to an inherently dangerous situation
that calls for an
immediate response on the part of the person,
regardless of
whether the person is within the limits of the
jurisdiction of the
person's regular employment or voluntary
service when responding,
on the condition that the person responds
to the situation as the
person otherwise would if the person were
on duty in the person's
jurisdiction: (i) Off-duty peace officers. As used in division
(A)(1)(a)(i) of this section, "peace officer"
has the same meaning as in
section
2935.01 of the Revised
Code. (ii) Off-duty firefighters, whether paid or volunteer, of a
lawfully constituted fire department. (iii) Off-duty first responders, emergency medical
technicians-basic, emergency medical technicians-intermediate, or
emergency medical technicians-paramedic, whether paid or
volunteer, of an ambulance service organization or emergency
medical service organization pursuant to Chapter 4765. of the
Revised Code. (b) Every person in the service of any person, firm, or
private corporation, including any public service corporation,
that (i) employs one or more persons regularly in the same
business or in or about the same establishment under any contract
of hire, express or implied, oral or written, including aliens and
minors, household workers who earn one hundred sixty dollars or
more in cash in any calendar quarter from a single household and
casual workers who earn one hundred sixty dollars or more in cash
in any calendar quarter from a single employer, or (ii) is bound
by any such contract of hire or by any other written contract, to
pay into the state insurance fund the premiums provided by this
chapter. (c) Every person who performs labor or provides services
pursuant to a construction contract, as defined in section 4123.79
of the Revised Code, if at least ten of the following criteria
apply: (i) The person is required to comply with instructions from
the other contracting party regarding the manner or method of
performing services; (ii) The person is required by the other contracting party
to have particular training; (iii) The person's services are integrated into the regular
functioning of the other contracting party; (iv) The person is required to perform the work personally; (v) The person is hired, supervised, or paid by the other
contracting party; (vi) A continuing relationship exists between the person and
the other contracting party that contemplates continuing or
recurring work even if the work is not full time; (vii) The person's hours of work are established by the
other contracting party; (viii) The person is required to devote full time to the
business of the other contracting party; (ix) The person is required to perform the work on the
premises of the other contracting party; (x) The person is required to follow the order of work set
by the other contracting party; (xi) The person is required to make oral or written reports
of progress to the other contracting party; (xii) The person is paid for services on a regular basis
such as hourly, weekly, or monthly; (xiii) The person's expenses are paid for by the other
contracting party; (xiv) The person's tools and materials are furnished by the
other contracting party; (xv) The person is provided with the facilities used to
perform services; (xvi) The person does not realize a profit or suffer a loss
as a result of the services provided; (xvii) The person is not performing services for a number of
employers at the same time; (xviii) The person does not make the same services available
to the general public; (xix) The other contracting party has a right to discharge
the person; (xx) The person has the right to end the relationship with
the other contracting party without incurring liability pursuant
to an employment contract or agreement. Every person in the service of any independent contractor or
subcontractor who has failed to pay into the state insurance fund
the amount of premium determined and fixed by the administrator of
workers' compensation for the person's employment or occupation or
if a self-insuring employer has failed to pay compensation and
benefits directly to the employer's injured and to the dependents
of the employer's killed employees as required by section 4123.35
of the Revised Code, shall be considered as the employee of the
person who has entered into a contract, whether written or verbal,
with such independent contractor unless such employees or their
legal representatives or beneficiaries elect, after injury or
death, to regard such independent contractor as the employer. (2) "Employee" does not mean: (a) A duly ordained, commissioned, or licensed minister or
assistant or associate minister of a church in the exercise of
ministry; (b) Any officer of a family farm corporation; or (c) An individual incorporated as a corporation; or
(d) An individual who otherwise is an employee of an employer but who signs the waiver and affidavit specified in section 4123.15 of the Revised Code on the condition that the administrator has granted a waiver and exception to the individual's employer under section 4123.15 of the Revised Code. Any employer may elect to include as an "employee" within
this chapter, any person excluded from the definition of
"employee" pursuant to division (A)(2) of this section. If an
employer is a partnership, sole proprietorship, individual incorporated as a corporation, or family farm
corporation, such employer may elect to include as an "employee"
within this chapter, any member of such partnership, the owner of
the sole proprietorship, the individual incorporated as a corporation, or the officers of the family farm
corporation. In the event of an election, the employer shall
serve upon the bureau of workers' compensation written notice
naming the persons to be covered, include such employee's
remuneration for premium purposes in all future payroll reports,
and no person excluded from the definition of "employee" pursuant
to division (A)(2) of this section, proprietor, individual incorporated as a corporation, or partner shall
be deemed an employee within this division until the employer has
served such notice. For informational purposes only, the bureau shall prescribe
such language as it considers appropriate, on such of its forms as
it considers appropriate, to advise employers of their right to
elect to include as an "employee" within this chapter a sole
proprietor, any member of a partnership, an individual incorporated as a corporation, the officers of a family
farm corporation, or a person excluded from the definition of
"employee" under division (A)(2)(a) of this section, that they
should check any health and disability insurance policy, or other
form of health and disability plan or contract, presently covering
them, or the purchase of which they may be considering, to
determine whether such policy, plan, or contract excludes benefits
for illness or injury that they might have elected to have covered
by workers' compensation. (B) "Employer" means: (1) The state, including state hospitals, each county,
municipal corporation, township, school district, and hospital
owned by a political subdivision or subdivisions other than the
state; (2) Every person, firm, professional employer organization as defined in section 4125.01 of the Revised Code, and private corporation, including
any public service corporation, that (a) has in service one or
more employees or shared employees regularly in the same business or in or about the
same establishment under any contract of hire, express or implied,
oral or written, or (b) is bound by any such contract of hire or
by any other written contract, to pay into the insurance fund the
premiums provided by this chapter. All such employers are subject to this chapter. Any member
of a firm or association, who regularly performs manual labor in
or about a mine, factory, or other establishment, including a
household establishment, shall be considered an employee in
determining whether such person, firm, or private corporation, or
public service corporation, has in its service, one or more
employees and the employer shall report the income derived from
such labor to the bureau as part of the payroll of such employer,
and such member shall thereupon be entitled to all the benefits of
an employee. (C) "Injury" includes
any injury, whether caused by external
accidental means
or accidental in character and result, received
in the course of,
and arising out of, the injured employee's
employment. "Injury" does not include: (1) Psychiatric conditions except where the conditions
have
arisen from an injury or occupational disease; (2) Injury or disability caused primarily by the natural
deterioration of tissue, an organ, or part of the body; (3) Injury or disability incurred in voluntary
participation
in an employer-sponsored recreation or fitness
activity if the
employee signs a waiver of the employee's right to
compensation or
benefits under this chapter prior to engaging in
the recreation or
fitness activity. (D) "Child" includes a posthumous child and a child legally
adopted prior to the injury. (E) "Family farm corporation" means a corporation founded
for the purpose of farming agricultural land in which the majority
of the voting stock is held by and the majority of the
stockholders are persons or the spouse of persons related to each
other within the fourth degree of kinship, according to the rules
of the civil law, and at least one of the related persons is
residing on or actively operating the farm, and none of whose
stockholders are a corporation. A family farm corporation does
not cease to qualify under this division where, by reason of any
devise, bequest, or the operation of the laws of descent or
distribution, the ownership of shares of voting stock is
transferred to another person, as long as that person is within
the degree of kinship stipulated in this division. (F) "Occupational disease" means a disease contracted in the
course of employment, which by its causes and the characteristics
of its manifestation or the condition of the employment results in
a hazard which distinguishes the employment in character from
employment generally, and the employment creates a risk of
contracting the disease in greater degree and in a different
manner from the public in general. (G) "Self-insuring employer" means an employer who is
granted the privilege of paying compensation and benefits directly
under section 4123.35 of the Revised Code, including a board of
county commissioners for the sole purpose of constructing a sports
facility as defined in section 307.696 of the Revised Code,
provided that the electors of the county in which the sports
facility is to be built have approved construction of a sports
facility by ballot election no later than November 6, 1997. (H) "Public employer" means an employer as defined in
division (B)(1) of this section.
Sec. 4123.291. (A) An adjudicating committee appointed by
the administrator of workers' compensation to hear any matter
specified in divisions (B)(1) to (6)(7) of this section shall hear
the matter within sixty days of the date on which an employer
files the request, protest, or petition.
An employer desiring to
file a request, protest, or petition regarding any matter
specified in divisions (B)(1) to (6)(7) of this section shall file
the request, protest, or petition to the adjudicating committee on
or before twenty-four months after the administrator sends
notice
of the determination about which the employer is filing the
request, protest, or petition. (B) An employer who is adversely affected by a decision of
an adjudicating committee appointed by the administrator may
appeal the decision of the committee to
the administrator or
the
administrator's designee. The
employer
shall file the appeal
in
writing within thirty days after the employer
receives the
decision of the adjudicating committee. The administrator
or
the
designee shall hear the appeal and hold a hearing,
provided
that
the decision of the
adjudicating committee relates to one of
the
following: (1) An employer request for a waiver of a default in the
payment of premiums pursuant to section 4123.37 of the Revised
Code; (2) An employer request for the settlement of liability as
a
noncomplying employer under section 4123.75 of the Revised
Code; (3) An employer petition objecting to the assessment of a
premium pursuant to section 4123.37 of the Revised Code and the
rules adopted pursuant to that section; (4) An employer request for the abatement of penalties
assessed pursuant to section 4123.32 of the Revised Code and the
rules adopted pursuant to that section; (5) An employer protest relating to an audit finding or a
determination of a manual classification, experience rating, or
transfer or combination of risk experience; (6) Any decision relating to any other risk premium matter
under Chapters 4121., 4123., and 4131. of the Revised Code; (7) An employer petition objecting to the amount of security required under division (C) of section 4125.05 of the Revised Code and the rules adopted pursuant to that section.
Sec. 4125.01. As used in this chapter:
(A) "Client employer" means a sole proprietor, partnership,
association, limited liability company, or corporation that enters
into a professional employer organization agreement and is
assigned shared employees by the professional employer
organization.
(B) "Coemploy" means the sharing of the responsibilities and
liabilities of being an employer.
(C) "Professional employer organization" means a sole
proprietor, partnership, association, limited liability company,
or corporation that enters into an agreement with one or more
client employers for the purpose of coemploying all or part of the
client employer's workforce at the client employer's work site.
(D) "Professional employer organization agreement" means a
written contract to coemploy employees between a professional employer organization and
a client employer with a duration of not less
than twelve months in accordance with the requirements of this
chapter.
(E) "Shared employee" means an individual intended to be
assigned to a client employer on a permanent basis, not as a
temporary supplement to the client employer's workforce, who is
coemployed by a professional employer organization and a client
employer pursuant to a professional employer organization
agreement. (F) "Trade secret" has the same meaning as in section 1333.61 of the Revised Code.
Sec. 4125.02. The administrator of the bureau of workers'
compensation shall adopt rules in accordance with Chapter 119. of
the Revised Code to administer and enforce this chapter.
Sec. 4125.03. (A) The professional employer organization with
whom a shared employee is coemployed shall do all of the
following:
(1) Pay wages associated with
a shared employee pursuant to
the terms and conditions of compensation in the
professional
employer organization agreement between the
professional employer
organization and the client employer;
(2) Pay all related payroll taxes associated with a shared
employee independent of the terms and conditions contained in the
professional employer organization agreement between the
professional employer organization and the client employer; (3) Maintain workers' compensation coverage, pay all
workers' compensation premiums and manage all
workers'
compensation claims, filings, and related procedures associated
with a shared employee in
compliance with Chapters 4121. and 4123.
of the Revised Code, except
that when shared employees include
family farm officers, ordained
ministers, or corporate officers of
the client employer, payroll
reports shall include the entire
amount of payroll associated with
those persons;
(4) Provide written notice to each shared employee it
assigns to perform services to a client employer of the
relationship between and the responsibilities of the professional
employer organization and the client employer;
(5) Maintain complete records separately listing the manual classifications of each client employer and the payroll reported to each manual classification for each client employer for each payroll reporting period during the time period covered in the professional employer organization agreement; (6) Maintain a record of workers' compensation claims for each client employer; (7) Within fourteen days after receiving notice from the bureau of workers' compensation that a refund or rebate will be applied to workers' compensation premiums, provide a copy of that notice to any client employer to whom that notice is relevant.
(B) The professional employer organization with whom a
shared employee is coemployed has a right of direction and
control over each shared employee assigned to a client employer's
location.
(C) Notwithstanding division (B) of this section, a client
employer may retain sufficient direction and control over a shared
employee as is necessary to conduct the client employer's business
and to discharge any fiduciary responsibility that it may have, or
to comply with any applicable licensure, regulatory, or statutory
requirement of the client employer.
Sec. 4125.04. (A) When a client employer enters into a
professional employer organization agreement with a professional
employer organization, the professional employer organization
is
the employer of record and the succeeding employer for
the
purposes of determining a workers' compensation experience
rating
pursuant to Chapter 4123. of the Revised Code.
(B) Pursuant to Section 35 of Article II, Ohio
Constitution, and section 4123.74 of the Revised Code, the
exclusive remedy for a shared employee to recover for injuries,
diseases, or death incurred in the course of and arising out of
the employment relationship against either the professional
employer organization or the client employer are those benefits
provided under Chapters 4121. and 4123. of the Revised Code.
Sec. 4125.05. (A) Not later than thirty days after the
effective date of this section or not later than thirty days
after the formation of a professional employer organization,
whichever date occurs later, a professional employer organization
operating in this state shall register with the administrator of
the bureau of workers' compensation on forms provided by the
administrator. Following initial registration, each professional
employer organization shall register with the administrator
annually on or before the thirty-first day of December.
(B) Initial registration and each annual registration
renewal shall include all of the following:
(1) A list of each of the professional employer
organization's client employers current as of the date of
registration for purposes of initial registration or current as of
the date of annual registration renewal, or within fourteen days of adding or releasing a client,
that includes
the client employer's name, address, federal tax
identification
number, and bureau of workers' compensation risk
number;
(2) A fee as determined by the administrator;
(3) The name or names under which the professional employer organization conducts business;
(4) The address of the professional employer organization's principal place of business and the address of each office it maintains in this state;
(5) The professional employer organization's taxpayer or employer identification number;
(6) A list of each state in which the professional employer organization has operated in the preceding five years, and the name, corresponding with each state, under which the professional employer organization operated in each state, including any alternative names, names of predecessors, and if known, successor business entities.
(C)(1) The administrator, with the advice and consent of the
workers' compensation oversight commission, shall adopt rules in
accordance with Chapter 119. of the Revised Code to require, except as otherwise specified in division (C)(2) of this section,
a professional employer organization to provide security in the
form of a bond or letter of credit assignable to the Ohio bureau of workers' compensation not to exceed an amount equal
to the premiums and assessments incurred for the two most recent payroll periods,
prior to any discounts or dividends, to meet the financial
obligations of the professional employer organization pursuant to
this chapter and Chapters 4121. and 4123. of the Revised
Code. (2) As an alternative to providing security in the form of a bond or letter of credit, the administrator shall permit a professional employer organization to make periodic payments of prospective premiums and assessments to the bureau or to submit proof of being certified by either a nationally recognized organization that certifies professional employer organizations or by a government entity approved by the administrator. (3) A professional employer organization may appeal the amount of the security required pursuant to rules adopted under division (C)(1) of this section in accordance with section 4123.291 of the Revised Code. (D) Notwithstanding division (C) of this
section, a professional employer organization that qualifies for
self-insurance or retrospective rating under section 4123.29 or
4123.35 of the Revised Code shall abide by the financial
disclosure and security requirements pursuant to those sections and
the rules adopted under those sections in place of the
requirements specified in division (C) of this
section or specified in rules adopted pursuant to that division. (E)
Except to the extent necessary for the administrator to
administer the statutory duties of the administrator and for
employees of the state to perform their official duties, all
records, reports, client lists, and other information obtained
from a professional employer organization under divisions (A) and
(B) of this section are confidential and shall be considered trade secrets and shall not be published or
open to public inspection. (F) The list described in division (B)(1) of this section shall be considered a trade secret.
(G) The administrator shall establish the fee described in division (B)(2) of this section in an amount that does not exceed the cost of the administration of the initial and renewal registration process.
Sec. 4125.06. (A) In accordance with Chapter 119. of the
Revised Code, the administrator of the bureau of workers'
compensation may deny registration or revoke the registration of a
professional employer organization and rescind its status as a
coemployer upon a finding that the professional employer
organization has done any of the following:
(1) Obtained or attempted to obtain registration through
misrepresentation, misstatement of a material fact, or fraud;
(2) Misappropriated any funds of the client employer;
(3) Used fraudulent or coercive practices to obtain or retain business or
demonstrated financial
irresponsibility;
(4) Failed to appear, without reasonable cause or excuse, in
response to a subpoena lawfully issued by the administrator;
(5) Failed to comply with the requirements of this chapter.
(B) The administrator's decision to deny or revoke a professional employer organization's registration or to rescind its status as a coemployer is stayed pending the exhaustion of all administrative appeals by the professional employer organization. The administrator shall adopt rules that require that when an employer contacts the bureau of workers' compensation to determine whether a particular professional employer organization is registered, if the administrator has denied or revoked that professional employer organization's registration or rescinded its status as a coemployer, and if all administrative appeals are not yet exhausted when the employer inquires, the appropriate bureau personnel shall inform the inquiring employer of the denial, revocation, or rescission and the fact that the professional employer organization has the right to appeal the administrator's decision.
(C)
Upon revocation of the registration of a professional
employer organization, each client employer associated with that
professional employer organization shall file payroll reports and
pay workers' compensation premiums directly to the administrator
on its own behalf at a rate determined by the administrator based
solely on the claims experience of the client employer. (D) Upon revocation of a professional employer organization's
registration, each client employer associated with that
professional employer organization shall file on its own behalf
the appropriate
documents or data with all state and federal
agencies as required
by law with respect to any shared employee
the client employer and the
professional employer organization
shared. Sec. 4125.07. Not later than fourteen calendar days after the
date on which a professional employer organization agreement is
terminated, the professional employer organization is adjudged
bankrupt, the professional employer organization ceases operations
within the state of Ohio, or the registration of the professional
employer organization is revoked, the professional employer
organization shall submit to the administrator of the bureau of
workers' compensation and each client employer associated with
that professional employer organization a completed workers'
compensation lease termination notice form provided by the
administrator. The completed form shall include all client
payroll and claim information listed in a format specified
by the administrator and notice of all workers'
compensation claims that have been reported to the professional
employer organization in accordance with its internal reporting
policies.
Sec. 4125.08. Nothing in this chapter exempts a professional
employer organization, client employer, or shared employee from
any applicable federal, state, or local licensing, registration,
or certification statutes or regulations. An individual required
to obtain and maintain a license, registration, or certification
under law and who is a shared employee of a professional employer
organization and a client employer is an employee of the client employer for
purposes of obtaining and maintaining the appropriate license,
registration, or certification as required by law. A professional
employer organization does not engage in any occupation, trade, or
profession that requires a license, certification, or registration
solely by entering into a professional employer agreement with a
client employer or coemploying a shared employee.
Sec. 4125.09. Nothing contained in this chapter or in any professional employer organization agreement shall affect, modify, or amend any collective bargaining agreement that exists on the effective date of this section. Nothing in this chapter shall alter the rights or obligations of any client employer, professional employer organization, or shared employee under the "National Labor Relations Act," 49 Stat. 449, 29 U.S.C.A. 151 et seq., the "Railway Labor Act," 44 Stat. 577, 45 U.S.C.A. 151, or any other applicable federal or state law.
Sec. 4125.99. Whoever violates division (A) of section 4125.05 of the Revised
Code is guilty of a minor misdemeanor. Whoever knowingly violates
division (A) of section 4125.05 of the Revised Code is guilty of a misdemeanor of
the second degree.
SECTION 2. That existing sections 121.083, 3781.10, 3781.19, 4123.01, and 4123.291 and sections Sec. 4104.41. , Sec. 4104.42. , Sec. 4104.43. , Sec. 4104.44. , Sec. 4104.45. , and Sec. 4104.47. of the Revised Code
are hereby repealed.
SECTION 3. That Section 3 of Sub. H.B. 75 of the 124th General Assembly be amended to read as follows: Sec. 3. (A) The Administrator of
Workers' Compensation,
with the
advice and consent of the Workers'
Compensation Oversight
Commission, may adopt rules that identify
specified medical
conditions that have a historical record of
being allowed whenever
included in a claim. The Administrator
shall designate the rules
to be effective only until three years
after the effective date
of this section September 30, 2005. The Administrator, for
a period of three years
after the effective date of this section until September 30, 2005,
may grant immediate
allowance of any medical condition identified
in those rules upon
the filing of a claim involving that medical
condition and may
make immediate payment of medical bills for any
medical condition
identified in those rules that is included in a
claim. If an
employer contests the allowance of a claim involving
any medical
condition identified in those rules, and the claim is
disallowed,
payment for the medical condition included in that
claim shall be
charged to and paid from the surplus fund created
under section
4123.34 of the Revised Code. (B) The Administrator shall establish a pilot program to
determine the effectiveness of implementing division (A) of this
section.
SECTION 4. That existing Section 3 of Sub. H.B. 75 of the 124th General Assembly is hereby repealed.
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