According to the Massachusetts Department of Labor Standards, the construction industry has one of the highest rates of injury in the Commonwealth. The construction industry also accounts for one of the highest numbers of workplace fatalities in Massachusetts. In 2015, 22 people died while working in the construction industry, representing almost 32 percent of all workplace injuries that year. Even more construction workers were injured, some severely, during the same year. In Massachusetts, all workers have the right to a safe workplace and, if an accident does happen, they are entitled to construction workers compensation.
Construction Workers Compensation
Under Massachusetts law, every employer with one or more employees is required to have workers’ compensation in place. Only the following professions are not required to be covered under workers’ compensation in the Commonwealth of Massachusetts:
- Door-to-door salespeople
- Part-time domestic workers
- Professional athletes
- Real estate agents
- Taxi drivers
In addition, members of LLCs, LLPs, partners and sole proprietorships are not required to provide worker’s compensation for themselves and corporate officers may request an exemption. Independent contractors are not covered by workers’ compensation.
In an effort to address a growing trend among construction companies attempting to avoid construction workers compensation requirements; Massachusetts legislators passed the Massachusetts Independent Contractor Law. According to the Massachusetts Attorney General, many employers who misclassify employees as independent contractors could be committing insurance fraud. In order to avoid providing construction workers comp, employers must confirm that the employee meets a three-prong test. If the employer cannot confirm that any one of these prongs is met, the employee is not an independent contractor. These prongs include:
- Freedom from control: The employee must complete the job using their own approach and with little direction from the employer. In addition, the employer cannot dictate the hours that the independent contractor will work.
- Service outside the usual course of employer’s business: The work performed must be outside the usual business that the company conducts. For example, a construction worker building shelves in an accounting office would be an independent contractor as shelf-building does not fall under the “usual course” of business conducted in an accounting office.
- Independent trade, occupation, profession or business: If the construction worker is engaged in an independent trade or business, they may be considered an independent contractor. For example, if someone working for a construction company held a business license for their own construction company, they could be considered an independent contractor.
In addition to laws passed by the Commonwealth, the federal government also has laws designed to assist construction workers in Massachusetts. In August 2017, the United States Occupational Safety and Health Administration (OHSA) issued a final rule designed to protect construction employees who work in confined spaces like manholes, tanks or tunnels. Employers are required to ensure that physical hazards are eliminated and that emergency personnel can easily assist employees if there is an accident. All employees who must work in confined spaces are required to undergo specific training and employers must create a written permit that outlines the safety measures the employee must follow.
Construction Workers Comp Laws in Massachusetts
If you are a construction worker who was injured while performing your job duties, you may be eligible for construction workers compensation. Workers’ compensation will pay medical expenses and wages you may have lost due to your injury. You may also qualify for transportation costs to and from treatments as well as medical devices you may need while recovering. You may also be eligible for vocational rehabilitation that may be necessary as a result of your injury. In order to qualify, you must be disabled for five full or partial calendar days and those days do not need to be consecutive. You must file your construction workers comp claims within four years of the injury or from the date you realized your injury or illness was related to your employment.
Filing Construction Workers Comp Claims
Your employer should provide you with information on how to file a workers’ compensation claim. If they won’t file the claim, you can file the claim with the Department of Industrial Accidents (DIA). You will need to provide them the date of the injury or illness as well as the first calendar day of work and the fifth calendar day that you missed. If you are filing on behalf of someone who has died as a result of a construction injury, you will need to provide the date of death. You will need to provide the name of the insurance carrier and what types of benefits you are seeking. Other information DIA will need include:
- Body parts and types of injuries
- How long you will be out of work
- Where you first went for treatment
- The doctor treating you
When filing construction workers’ compensation claims, you must complete Form 110 – Employee Claim and attach unpaid medical bills, medical reports, reports related to the accident along with witness names and statements.
Union Construction Workers Compensation Program
In some cases, if you are a member of a union, you have workers’ compensation available to you through the union. In fact, a study published by Barry T. Hirsch, David A. MacPherson and J. Michael Dumond found that union workers are more likely to receive workers’ compensation benefits than non-union workers. This may be because union workers receive better information from their union representatives about their rights under workers’ compensation and are less likely to discourage employees from filing for benefits. There are also union construction workers’ compensation programs that either provide extensive information on benefits available or may offer coverage, especially if you are an independent contractor.
Laws in Massachusetts require that you be provided a workplace that is safe which is why workers’ compensation regulations are in place. Regardless of your employer’s construction workers comp rates, they must provide you with coverage as long as you meet the criteria of an employee. You are also eligible for coverage even if the accident was your fault as Massachusetts offers “no fault” workers compensation. If you have been injured as a construction worker, it is important to discuss your situation with an attorney to be sure your rights are protected. Hiring an attorney does not mean you plan to sue your employer, but simply protects your rights under the law so that you get the compensation you are entitled to under the law.