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H. B. No. 397 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Representatives Szollosi, Wagoner
Cosponsors:
Representatives Dyer, Barrett, Okey, McGregor, J., Evans, Yuko, Harwood, Mallory, Brown, Williams, S., Patton, Stebelton
A BILL
To amend section 4123.01 of the Revised Code to
exempt individuals covered under the federal
Longshore and Harbor Workers' Compensation
Act
from coverage under Ohio's Workers' Compensation
Law unless an employer elects to provide such
coverage.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 4123.01 of the Revised Code be
amended to read as follows:
Sec. 4123.01. As used in this chapter:
(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;
(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;
(e) An individual who is covered under the federal "Longshore
and Harbor Workers' Compensation Act," 98 Stat. 1639, 33 U.S.C.
901 et seq.
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) 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.
(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 claimant's
psychiatric conditions
have
arisen from an injury or occupational
disease sustained by that claimant or where the claimant's
psychiatric conditions have arisen from sexual conduct in which
the claimant was forced by threat of physical harm to engage or
participate;
(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;
(4) A condition that pre-existed an injury unless that
pre-existing condition is substantially aggravated by the injury.
Such a substantial aggravation must be documented by objective
diagnostic findings, objective clinical findings, or objective
test results. Subjective complaints may be evidence of such a
substantial aggravation. However, subjective complaints without
objective diagnostic findings, objective clinical findings, or
objective test results are insufficient to substantiate a
substantial aggravation.
(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.
(I) "Sexual conduct" means vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of gender; and, without privilege to do so, the
insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal
cavity of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
Section 2. That existing section 4123.01 of the Revised Code
is hereby repealed.
Section 3. This act applies to all claims pursuant to
Chapters 4121., 4123., 4127., and 4131. of the Revised Code
arising on and after the effective date of this act.
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