In part 1 of our article, we outlined certain employee types exempt from workers’ compensation insurance.  This does not mean the employee cannot sue your company if they are injured.  The following outlines how and where you charter school can protect itself:

Legal Recourse

If an exempted worker/employee is injured, the legal system is the only recourse available to recover any medical costs or lost wages from the employer. Essentially, the injured party has the same legal rights as a member of the general public. Still, the injured party must prove that the employer was negligent in causing the injury or illness. The employer is allowed the same defenses as were available before the enactment of workers’ compensation laws:

• Assumption of Risk: Proving negligence requires evidence that a duty of care is owed. When an employee assumes the risk of inherently dangerous or recognizably dangerous activity, the employer’s duty of care is lifted. With no required duty of care, there can be no negligence. Employees in hazardous occupations are believed to understand the hazards and to assume the risk of injury;
• Contributory or Comparative Negligence (depending on the state): Doctrine of defense stating that if the injured person was even partially culpable in causing or aggravating his own injury, he is barred or severely limited in the amount of recovery from the other party; and
• Fellow Servant Rule: Defense against employer negligence asserting that an employee’s/worker’s injury was caused by a fellow employee, not by the employer’s acts. If proven, negligence is not chargeable against the employer, and recovery could be severely limited or barred.

Unless negligence can be proven, no finding of guilt or a requirement to pay will materialize.

Workers’ Compensation Coverage Provided

Workers’ compensation coverage can be extended to many of these exempt employments by attaching one of the available Voluntary Compensation Endorsements. These endorsements extend workers’ compensation protection to employments customarily exempted by individual state law by allowing the employer to designate the class of employees they wish protected. Essentially, workers become de facto employees, removing the employee’s need to sue and prove negligence and the employer’s requirement to provide and pay for a defense.