In Southwest Ohio, a short drive along the I-275 loop easily connects tri-state individuals and businesses to three different states in a relatively short period of time. The day to day business operations of many tri-state employers often take their employees to all three states, and many employees live in one state and work in another. While employers enjoy the connectivity and ease of interstate commerce in our area, they are also faced with a unique situation when an employee sustains a workplace injury while on an assignment in a different state.
Unfortunately, some employers are shocked to learn, only after an injury, that they actually have no workers’ compensation coverage at all when an employee is injured while on an out-of-state job assignment. When this happens, the fines and penalties can be substantial, and the employer may be financially responsible for all of the actual costs associated with the out of state injury. As a result, all employers should periodically and proactively review their existing workers’ compensation insurance policies to ensure that their day to day business operations are sufficiently covered when intermittent or temporary work assignments take their employees across state lines.
Ohio Employees Injured While Working in Another State
Generally, the extraterritorial coverage provisions of Ohio’s workers’ compensation laws cover Ohio employees who sustain a workplace injury while on a temporary work assignment out of state. While there is no set time limit on the length of time that Ohio coverage applies to employees who are temporarily working out of the state, there are some limitations. The out of state work must be only incidental to the Ohio employment. Ohio’s extraterritorial coverage usually will not cover employees who regularly perform work outside of Ohio on a frequent basis or as part of their day to day job activities.
Out of State Residents Working in Ohio
Out of state companies who employ non-Ohio residents often face situations where their employees may temporarily or periodically work in Ohio. Pursuant to R.C. 4123.54(B), if an employee is: (1) a resident of a state other than Ohio, and (2) is insured under the workers’ compensation laws of a state other than Ohio, then the employee is not entitled to receive Ohio workers’ compensation benefits related to an injury that occurs while temporarily working in Ohio. Consider this example: An Indiana resident is employed by an Indiana corporation, and his work duties take him to a job assignment in Ohio for three days. If the individual sustains a workplace injury while working on the temporary job assignment in Ohio, he would generally not be covered under Ohio workers’ compensation insurance, and his exclusive remedy for a workers’ compensation claim would be to pursue an Indiana workers’ compensation claim.
How Long is “Temporary” Work in Ohio?
The determination of whether an employee is “temporarily” working in Ohio for purposes of workers’ compensation coverage depends on the length of time the employee has been in the state or is expected to be in the state at the time of an injury. The Ohio Administrative Code defines “temporary” as a period not to exceed 90 days. Accordingly, the Ohio BWC respects the extraterritorial rights of workers’ compensation insurance coverage of an out of state employer whose business contracts require work in Ohio for less than 90 consecutive days.
Employer/Employee Coverage Agreements
Whenever there is the possibility that the workers’ compensation laws of two different states could apply to employees temporarily working in another state, employers can avoid uncertainty by proactively completing and filing a jurisdictional agreement to clarify which state’s laws will apply in the event of an out-of-state workplace injury. When deciding to choose a particular state for coverage, employers must seriously consider: (1) whether the employment relationship has sufficient Ohio contacts to be considered localized in Ohio, (2) where the contract of employment was entered, and (3) whether all or some portion of the work is to be performed outside of Ohio.
Employers who select Ohio as their exclusive remedy state must complete BWC Form C-110. Employers that choose another state as their exclusive remedy state must complete BWC Form C-112. In either case, these jurisdictional agreements must be filed with the Ohio BWC in writing ten days after the agreement is executed to be valid. This remains in force until terminated or modified by agreement of the parties who filed the original agreement.
Whether an employer performs work across state lines on a regular basis, periodically, or even for one day, the employer must be sure that their business maintains the required workers’ compensation coverage in the event of a workplace injury. Employers should always consult an attorney or an experienced workers’ compensation insurance agent to make sure that they have sufficient workers’ compensation coverage in any state in which they do business. It is much better to address these issues proactively than to find yourself in a situation where you mistakenly have no coverage at all. To review your specific situation, contact Bricker Graydon to ensure that your business and your employees have the correct workers’ compensation coverage in the event of a workplace injury.
