Federal Workers' Compensation Laws
Many types of employees are subject to federal workers' compensation laws that prescribe compensation for their injuries. These laws generally provide a broader range of benefits or legal remedies than are available to an employee under a state's workers' compensation law. The Texas workers' compensation law specifically exempts persons covered by a method of compensation established under federal law. The workers' compensation policy, therefore, does not apply to any employee subject to these federal laws:
- Longshore and Harbor Workers' Compensation Act
- Outer Continental Shelf Lands Act
- Defense Base Act
- Nonappropriated Fund Instrumentalities Act
- Federal Employers' Liability Act
- The Jones Act
- General Maritime Law
- Federal Coal Mine Health and Safety Act
If any of your employees are subject to one of these federal workers' compensation laws, contact your SwingleCollins agent so we can arrange the appropriate coverage.
The Longshore and Harbor Workers' Compensation Act (LHWCA)
This act applies to workers in maritime employment other than masters or crew of vessels. The act applies to employees such as longshore and harbor workers, ship repair persons, shipbuilders, shipbreakers and employees engaged in loading, unloading, repairing or building a vessel, when such employees are working on navigable waters or any adjoining pier, wharf, dry dock, terminal, building way, or marine railway. The test for "navigable waters" is whether the body of water is currently used or capable of being used for commercial shipping activity. The Act specifically excludes the following:
- Persons employed exclusively to perform office clerical, secretarial, security, or data processing work;
- Persons employed by a marina who are not engaged in construction, replacement, or expansion of the marina (except for routine maintenance);
- Persons employed by suppliers, transporters and vendors who are temporarily doing business on the premises and are not performing work normally performed by employees of the organization occupying the premises;
- Aquaculture workers;
- Persons building, repairing or dismantling recreational vessels under 65 feet in length; or
- Officers or employees of any state government or subdivision.
The law requires employers of persons subject to the Act to secure coverage for LHWCA benefits by purchasing coverage through an authorized insurance carrier or by becoming an authorized self-insurer. Failure to do so subjects the employer (including separately the officers of a corporation) to a fine of up to $10,000 or imprisonment. The employer and officers of a corporation are also personally liable for any compensation due an injured employee under the act.
Employers with no known exposure, but with operations on or near navigable bodies of water, should purchase coverage as a precautionary measure. Many insurance companies are willing to do this on an "if any" basis, subject to audit.
Outer Continental Shelf Lands Act
This law provides for payment of LHWCA benefits to workers injured or killed while involved in the exploration for and development of natural resources (oil and gas) on fixed structures permanently attached to the Outer Continental Shelf (OCS). The OCS is generally defined as submerged lands lying beyond the coastal states' territorial boundaries (10 miles for Texas and Florida, 3 miles for other states).
Workers on fixed platforms within the state's territorial limitation are generally subject to the state workers' compensation law, but some employees may fall under the LHWCA by definition. Employees assigned to work on platforms which are not fixed may require maritime coverage. Many offshore platforms are actually jack-up barges or tethered submersible rigs which may qualify as a vessel with a crew. Maritime coverage must be provided for these employees.
Defense Base Act
This law provides for payment of LHWCA benefits to civilian employees of contractors who are injured or killed while performing work at overseas military bases, whether in a territory or possession of the U.S. or in a foreign country. Coverage also applies to workers on various public works contracts performed outside the continental United States.
Non appropriated Fund Instrumentalities Act
This act provides for payment of LHWCA benefits to civilian employees under the jurisdiction of the armed forces and involved in the pleasure and improvement of Armed Forces' personnel, including employees of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service, Navy, Marine and Coast Guard Exchanges, and Navy Ship Stores.
Federal Employers' Liability Act (FELA)
This law makes an interstate railroad liable for bodily injuries sustained by an employee as a result of the employers' negligence.
The Jones Act
Also known as the Merchant Marine Act, this law and General Maritime Law apply to injuries to or death of masters and crew of vessels involved in commerce on navigable bodies of water. The Jones Act applies the Federal Employers' Liability Act to these employees and requires the employee to prove negligence on the part of the employer or its employees or agents. The General Maritime Law (common law of the sea) recognizes the vessel owner's duty to provide a "seaworthy" vessel. A seaman injured because of a ship's alleged unseaworthiness may bring suit against the vessel itself (an "in rem" suit) in addition to any negligence claim under the Jones Act.
Federal Coal Mine Health and Safety Act
This law provides for compensation of coal miners that have contracted black lung disease.