34A-2-103 - Employers enumerated and defined -- Regularly employed -- Statutory employers.
34A-2-103. Employers enumerated and defined -- Regularly employed -- Statutoryemployers.
(1) (a) The state, and each county, city, town, and school district in the state areconsidered employers under this chapter and Chapter 3, Utah Occupational Disease Act.
(b) For the purposes of the exclusive remedy in this chapter and Chapter 3, UtahOccupational Disease Act prescribed in Sections 34A-2-105 and 34A-3-102, the state isconsidered to be a single employer and includes any office, department, agency, authority,commission, board, institution, hospital, college, university, or other instrumentality of the state.
(2) (a) Except as provided in Subsection (4), each person, including each public utilityand each independent contractor, who regularly employs one or more workers or operatives inthe same business, or in or about the same establishment, under any contract of hire, express orimplied, oral or written, is considered an employer under this chapter and Chapter 3, UtahOccupational Disease Act.
(b) As used in this Subsection (2):
(i) "Independent contractor" means any person engaged in the performance of any workfor another who, while so engaged, is:
(A) independent of the employer in all that pertains to the execution of the work;
(B) not subject to the routine rule or control of the employer;
(C) engaged only in the performance of a definite job or piece of work; and
(D) subordinate to the employer only in effecting a result in accordance with theemployer's design.
(ii) "Regularly" includes all employments in the usual course of the trade, business,profession, or occupation of the employer, whether continuous throughout the year or for only aportion of the year.
(3) (a) The client under a professional employer organization agreement regulated underTitle 31A, Chapter 40, Professional Employer Organization Licensing Act:
(i) is considered the employer of a covered employee; and
(ii) subject to Section 31A-40-209, shall secure workers' compensation benefits for acovered employee by complying with Subsection 34A-2-201(1) or (2) and commission rules.
(b) The division shall promptly inform the Insurance Department if the division hasreason to believe that a professional employer organization is not in compliance with Subsection34A-2-201(1) or (2) and commission rules.
(4) A domestic employer who does not employ one employee or more than one employeeat least 40 hours per week is not considered an employer under this chapter and Chapter 3, UtahOccupational Disease Act.
(5) (a) As used in this Subsection (5):
(i) (A) "agricultural employer" means a person who employs agricultural labor as definedin Subsections 35A-4-206(1) and (2) and does not include employment as provided in Subsection35A-4-206(3); and
(B) notwithstanding Subsection (5)(a)(i)(A), only for purposes of determining who is amember of the employer's immediate family under Subsection (5)(a)(ii), if the agriculturalemployer is a corporation, partnership, or other business entity, "agricultural employer" means anofficer, director, or partner of the business entity;
(ii) "employer's immediate family" means:
(A) an agricultural employer's:
(I) spouse;
(II) grandparent;
(III) parent;
(IV) sibling;
(V) child;
(VI) grandchild;
(VII) nephew; or
(VIII) niece;
(B) a spouse of any person provided in Subsection (5)(a)(ii)(A)(II) through (VIII); or
(C) an individual who is similar to those listed in Subsections (5)(a)(ii)(A) or (B) asdefined by rules of the commission; and
(iii) "nonimmediate family" means a person who is not a member of the employer'simmediate family.
(b) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, anagricultural employer is not considered an employer of a member of the employer's immediatefamily.
(c) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, anagricultural employer is not considered an employer of a nonimmediate family employee if:
(i) for the previous calendar year the agricultural employer's total annual payroll for allnonimmediate family employees was less than $8,000; or
(ii) (A) for the previous calendar year the agricultural employer's total annual payroll forall nonimmediate family employees was equal to or greater than $8,000 but less than $50,000;and
(B) the agricultural employer maintains insurance that covers job-related injuries of theemployer's nonimmediate family employees in at least the following amounts:
(I) $300,000 liability insurance, as defined in Section 31A-1-301; and
(II) $5,000 for health care benefits similar to benefits under health care insurance asdefined in Section 31A-1-301.
(d) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, anagricultural employer is considered an employer of a nonimmediate family employee if:
(i) for the previous calendar year the agricultural employer's total annual payroll for allnonimmediate family employees is equal to or greater than $50,000; or
(ii) (A) for the previous year the agricultural employer's total payroll for nonimmediatefamily employees was equal to or exceeds $8,000 but is less than $50,000; and
(B) the agricultural employer fails to maintain the insurance required under Subsection(5)(c)(ii)(B).
(6) An employer of agricultural laborers or domestic servants who is not considered anemployer under this chapter and Chapter 3, Utah Occupational Disease Act, may come under thischapter and Chapter 3, Utah Occupational Disease Act, by complying with:
(a) this chapter and Chapter 3, Utah Occupational Disease Act; and
(b) the rules of the commission.
(7) (a) (i) As used in this Subsection (7)(a), "employer" includes any of the followingpersons that procures work to be done by a contractor notwithstanding whether or not the persondirectly employs a person:
(A) a sole proprietorship;
(B) a corporation;
(C) a partnership;
(D) a limited liability company; or
(E) a person similar to one described in Subsections (7)(a)(i)(A) through (D).
(ii) If an employer procures any work to be done wholly or in part for the employer by acontractor over whose work the employer retains supervision or control, and this work is a part orprocess in the trade or business of the employer, the contractor, all persons employed by thecontractor, all subcontractors under the contractor, and all persons employed by any of thesesubcontractors, are considered employees of the original employer for the purposes of thischapter and Chapter 3, Utah Occupational Disease Act.
(b) Any person who is engaged in constructing, improving, repairing, or remodelling aresidence that the person owns or is in the process of acquiring as the person's personal residencemay not be considered an employee or employer solely by operation of Subsection (7)(a).
(c) A partner in a partnership or an owner of a sole proprietorship is not considered anemployee under Subsection (7)(a) if the employer who procures work to be done by thepartnership or sole proprietorship obtains and relies on either:
(i) a valid certification of the partnership's or sole proprietorship's compliance withSection 34A-2-201 indicating that the partnership or sole proprietorship secured the payment ofworkers' compensation benefits pursuant to Section 34A-2-201; or
(ii) if a partnership or sole proprietorship with no employees other than a partner of thepartnership or owner of the sole proprietorship, a workers' compensation coverage waiver issuedby an insurer pursuant to Section 31A-22-1011 stating that:
(A) the partnership or sole proprietorship is customarily engaged in an independentlyestablished trade, occupation, profession, or business; and
(B) the partner or owner personally waives the partner's or owner's entitlement to thebenefits of this chapter and Chapter 3, Utah Occupational Disease Act, in the operation of thepartnership or sole proprietorship.
(d) A director or officer of a corporation is not considered an employee under Subsection(7)(a) if the director or officer is excluded from coverage under Subsection 34A-2-104(4).
(e) A contractor or subcontractor is not an employee of the employer under Subsection(7)(a), if the employer who procures work to be done by the contractor or subcontractor obtainsand relies on either:
(i) a valid certification of the contractor's or subcontractor's compliance with Section34A-2-201; or
(ii) if a partnership, corporation, or sole proprietorship with no employees other than apartner of the partnership, officer of the corporation, or owner of the sole proprietorship, aworkers' compensation coverage waiver issued by an insurer pursuant to Section 31A-22-1011stating that:
(A) the partnership, corporation, or sole proprietorship is customarily engaged in anindependently established trade, occupation, profession, or business; and
(B) the partner, corporate officer, or owner personally waives the partner's, corporateofficer's, or owner's entitlement to the benefits of this chapter and Chapter 3, Utah OccupationalDisease Act, in the operation of the partnership's, corporation's, or sole proprietorship's enterpriseunder a contract of hire for services.
(f) (i) For purposes of this Subsection (7)(f), "eligible employer" means a person who:
(A) is an employer; and
(B) procures work to be done wholly or in part for the employer by a contractor,including:
(I) all persons employed by the contractor;
(II) all subcontractors under the contractor; and
(III) all persons employed by any of these subcontractors.
(ii) Notwithstanding the other provisions in this Subsection (7), if the conditions ofSubsection (7)(f)(iii) are met, an eligible employer is considered an employer for purposes ofSection 34A-2-105 of the contractor, subcontractor, and all persons employed by the contractoror subcontractor described in Subsection (7)(f)(i)(B).
(iii) Subsection (7)(f)(ii) applies if the eligible employer:
(A) under Subsection (7)(a) is liable for and pays workers' compensation benefits as anoriginal employer under Subsection (7)(a) because the contractor or subcontractor fails to complywith Section 34A-2-201;
(B) (I) secures the payment of workers' compensation benefits for the contractor orsubcontractor pursuant to Section 34A-2-201;
(II) procures work to be done that is part or process of the trade or business of theeligible employer; and
(III) does the following with regard to a written workplace accident and injury reductionprogram that meets the requirements of Subsection 34A-2-111(3)(d):
(Aa) adopts the workplace accident and injury reduction program;
(Bb) posts the workplace accident and injury reduction program at the work site at whichthe eligible employer procures work; and
(Cc) enforces the workplace accident and injury reduction program according to theterms of the workplace accident and injury reduction program; or
(C) (I) obtains and relies on:
(Aa) a valid certification described in Subsection (7)(c)(i) or (7)(e)(i);
(Bb) a workers' compensation coverage waiver described in Subsection (7)(c)(ii) or(7)(e)(ii); or
(Cc) proof that a director or officer is excluded from coverage under Subsection34A-2-104(4);
(II) is liable under Subsection (7)(a) for the payment of workers' compensation benefits ifthe contractor or subcontractor fails to comply with Section 34A-2-201;
(III) procures work to be done that is part or process in the trade or business of theeligible employer; and
(IV) does the following with regard to a written workplace accident and injury reductionprogram that meets the requirements of Subsection 34A-2-111(3)(d):
(Aa) adopts the workplace accident and injury reduction program;
(Bb) posts the workplace accident and injury reduction program at the work site at whichthe eligible employer procures work; and
(Cc) enforces the workplace accident and injury reduction program according to theterms of the workplace accident and injury reduction program.
Amended by Chapter 250, 2008 General Session
Amended by Chapter 263, 2008 General Session
Amended by Chapter 318, 2008 General Session