Senate Bill sb2232

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    Florida Senate - 2004                                  SB 2232

    By Senator Bennett





    21-606B-04

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.055, F.S.; requiring an

  4         employer with fewer than four employees who has

  5         elected alternative coverage to workers'

  6         compensation to post notice at each worksite to

  7         this effect; amending s. 440.075, F.S.;

  8         providing that every corporate officer who

  9         elects alternative coverage must proceed at

10         common law in any action to recover damages for

11         injury or death brought against the employer;

12         amending s. 440.077, F.S.; providing that an

13         officer of a corporation who elects alternative

14         coverage may not recover workers' compensation

15         benefits; creating s. 440.095, F.S.; providing

16         for alternative coverage to regular workers'

17         compensation; prescribing benefits included in

18         alternative coverage; prescribing a schedule of

19         benefits for specified injuries; authorizing

20         the Financial Services Commission to adopt

21         rules specifying policies providing alternative

22         coverages; amending s. 440.02, F.S.; redefining

23         the terms "employee," "employer," and

24         "employment" for purposes of unemployment

25         compensation coverage; deleting the power of

26         corporate officers and certain others to elect

27         exemption from workers' compensation coverage;

28         amending s. 440.04, F.S.; providing that a

29         corporate officer who has elected alternative

30         coverage may revoke that election; amending s.

31         440.05, F.S.; prescribing procedures for giving

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 1         notice of election of alternative coverage and

 2         of revocation of that election; amending s.

 3         440.10, F.S.; providing for subcontractors to

 4         give evidence of alternative coverage to

 5         contractors, when applicable; amending s.

 6         440.105, F.S.; providing penalties for an

 7         employer that coerces an employee into electing

 8         alternative coverage; amending ss. 489.115,

 9         489.515, F.S., to conform; providing an

10         effective date.

11  

12  Be It Enacted by the Legislature of the State of Florida:

13  

14         Section 1.  Section 440.055, Florida Statutes, is

15  amended to read:

16         440.055  Notice requirements.--An employer who employs

17  fewer than four employees, who is permitted by law to elect

18  alternative coverage not to secure payment of compensation

19  under this chapter, and who elects not to do so shall post

20  clear written notice in a conspicuous location at each

21  worksite directed to all employees and other persons

22  performing services at the worksite of their lack of

23  entitlement to full workers' compensation benefits under this

24  chapter and their entitlement to reduced, alternative coverage

25  benefits.

26         Section 2.  Section 440.075, Florida Statutes, is

27  amended to read:

28         440.075  When corporate officer rejects chapter;

29  effect.--Every corporate officer who elects alternative

30  coverage as permitted by to reject this chapter shall, in any

31  action to recover damages for injury or death brought against

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 1  the corporate employer, proceed as at common law, and the

 2  employer in such suit may avail itself of all defenses that

 3  exist at common law.

 4         Section 3.  Section 440.077, Florida Statutes, is

 5  amended to read:

 6         440.077  When a corporate officer rejects chapter,

 7  effect.--An officer of a corporation who is permitted to elect

 8  alternative coverage an exemption under this chapter and who

 9  elects to be exempt from the provisions of this chapter may

10  not recover benefits under this chapter other than the

11  benefits provided by the alternative coverage.

12         Section 4.  Section 440.095, Florida Statutes, is

13  created to read:

14         440.095  Alternative coverage.--

15         (1)  In lieu of workers' compensation coverage as

16  provided in ss. 440.09-440.093 and the benefits for such

17  coverage specified in this chapter, eligible persons may elect

18  alternative coverage under this section. Such alternative

19  coverage must provide coverage for accidents, both

20  work-related and not work-related, but not coverage for

21  illnesses and other health problems that do not result from an

22  accident. Alternative coverage must provide, at a minimum, the

23  benefits specified in this section.

24         (2)  Persons who are eligible to elect alternative

25  coverage are:

26         (a)  An employer with fewer than four employees.

27         (b)  A sole proprietor or a partner who is not engaged

28  in the construction industry.

29         (c)  An officer of a corporation, as provided in s.

30  440.02(15)(b).

31  

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 1         (3)  Disability benefits are 60 percent of preaccident

 2  wages for up to 12 months, not to exceed $1,500 per month,

 3  payable during the continuance of the disability, beginning

 4  after a 7-day elimination period after the date of the covered

 5  accident.

 6         (4)  Accidental death and dismemberment benefits are a

 7  death benefit of $100,000 and dismemberment benefits subject

 8  to the following schedule:

 9         (a)  For loss of an arm ...................... $20,000.

10         (b)  For loss of a hand ...................... $10,000.

11         (c)  For loss of a leg ....................... $20,000.

12         (d)  For loss of a foot ...................... $10,000.

13         (e)  For loss of one eye ..................... $15,000.

14         (f)  For loss of a thumb ...................... $5,000.

15         (g)  For loss of a second finger .............. $2,500.

16         (h)  For loss of a third finger ............... $2,000.

17         (i)  For loss of a fourth finger .............. $1,000.

18         (j)  For loss of a fifth finger ................. $750.

19         (k)  For loss of a great toe .................. $2,000.

20         (l)  For loss of a toe other than great toe ..... $750.

21         (5)  In addition to the benefits under subsection (3),

22  a catastrophic loss benefit of $100,000 shall be payable after

23  a 365-day elimination period after the date of the covered

24  accident, for an injury that results in total and permanent:

25         (a)  Loss of both hands or both feet;

26         (b)  Loss or loss of use of both arms or both legs;

27         (c)  Loss or loss of use of one arm and one leg;

28         (d)  Loss of one hand and one foot;

29         (e)  Loss of sight in both eyes;

30         (f)  Loss of hearing in both ears; or

31         (g)  Loss of the ability to speak.

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 1         (6)  Hospital care benefits are as follows:

 2         (a)  Hospital admission ........ $750 per admission per

 3  accident.

 4         (b)  Hospital confinement ...... $200 per day up to 365

 5  days.

 6         (c)  Hospital intensive care .... $400 per day up to 15

 7  days.

 8         (7)  Medical indemnity benefits are as follows:

 9         (a)  Ambulance ......................... $100 per trip.

10         (b)  Air ambulance ..................... $500 per trip.

11         (c)  Emergency room treatment ...... $150 per accident.

12         (d)  Initial doctor's office visit .. $50 per accident.

13         (e)  Open abdominal or thoracic surgery ....... $1,000.

14         (f)  Blood/plasma/platelets ..................... $300.

15         (g)  Dislocation (separated joint). For an open

16  (surgical) reduction of a dislocation of the following bones,

17  which amounts are reduced by 50 percent for closed

18  (nonsurgical) reduction:

19         1.  Hip ....................................... $4,000.

20         2.  Knee ...................................... $2,000.

21         3.  Ankle bone or bones of the foot ........... $1,600.

22         4.  Collarbone (sternoclavicular) ............. $1,000.

23         5.  Lower jaw, shoulder, elbow, wrist ........... $600.

24         6.  Bone or bones of the hand ................... $600.

25         7.  Collarbone (acromioclavicular and separation), one

26  toe or finger .......................................... $200.

27         (h)  Fracture (broken bone). For an open (surgical)

28  reduction of a fracture of the following bones, which amounts

29  are reduced by 50 percent for closed (nonsurgical) reduction:

30         1.  Skull/depressed ........................... $5,000.

31         2.  Skull/simple nondepressed ................. $2,000.

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 1         3.  Hip, thigh ................................ $3,000.

 2         4.  Body of vertebrae, pelvis, leg ............ $1,600.

 3         5.  Bones of face or nose ....................... $700.

 4         6.  Upper jaw, maxilla .......................... $700.

 5         7.  Upper area between elbow and shoulder ....... $700.

 6         8.  Lower jaw, mandible, kneecap, ankle, foot ... $600.

 7         9.  Shoulder blade, collarbone, vertebral processes

 8  ........................................................ $600.

 9         10.  Forearm, wrist, hand ....................... $600.

10         11.  Rib ........................................ $500.

11         12.  Coccyx ..................................... $400.

12         13.  Finger, toe ................................ $100.

13         (i)  Burn (based on size and degree) . $750 to $10,000.

14         (j)  Concussion ................................. $100.

15         (k)  Emergency dental work ............... $50 to $150.

16         (l)  Eye injury ................................. $200.

17         (m)  Torn knee cartilage ........................ $500.

18         (n)  Lacerations (based on size) ......... $25 to $400.

19         (o)  Ruptured disc .............................. $400.

20         (p)  Tendon/ligament/rotator cuff ............... $600.

21         (q)  Followup care:

22         1.  Accident followup treatment ..... $50 (limit of one

23  visit, payable after emergency treatment, hospital discharge,

24  or initial doctor's office visit).

25         2.  Appliances (wheelchair, crutches) ........... $100.

26         3.  Physical therapy ...... $25 per treatment up to six

27  treatments.

28         4.  Prosthetic devices ........................ $1,000.

29         (8)  The Office of Insurance Regulation shall determine

30  whether a policy meets the minimum requirements specified in

31  this section. Policies determined to meet such requirements

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 1  and the applications for such policies shall include the

 2  following statement: "This policy is an accident-only policy

 3  approved by the Florida Office of Insurance Regulation as

 4  alternative coverage to workers' compensation coverage, but

 5  only for persons legally allowed to elect alternative

 6  coverage. Persons allowed to elect alternative coverage are:

 7  employers with three or fewer employees; sole proprietors not

 8  engaged in the construction industry; and officers and

 9  directors of corporations, limited to three officers and

10  directors of a corporation, engaged in the construction

11  industry."

12         (9)  The Financial Services Commission may, by rule,

13  specify additional requirements for alternative benefit

14  policies consistent with this section.

15         Section 5.  Subsections (15), (16), and (17) of section

16  440.02, Florida Statutes, are amended to read:

17         440.02  Definitions.--When used in this chapter, unless

18  the context clearly requires otherwise, the following terms

19  shall have the following meanings:

20         (15)(a)  "Employee" means any person who receives

21  remuneration from an employer for the performance of any work

22  or service while engaged in any employment under any

23  appointment or contract for hire or apprenticeship, express or

24  implied, oral or written, whether lawfully or unlawfully

25  employed, and includes, but is not limited to, aliens and

26  minors.

27         (b)  "Employee" includes any person who is an officer

28  of a corporation and who performs services for remuneration

29  for such corporation within this state, whether or not such

30  services are continuous.

31  

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 1         1.  Any officer of a corporation may elect alternative

 2  coverage under to be exempt from this chapter by filing

 3  written notice of the election with the department as provided

 4  in s. 440.05.

 5         2.  As to officers of a corporation who are engaged in

 6  the construction industry, no more than three officers of a

 7  corporation or of any group of affiliated corporations may

 8  elect alternative coverage under to be exempt from this

 9  chapter by filing written notice of the election with the

10  department as provided in s. 440.05. Officers must be

11  shareholders, each owning at least 10 percent of the stock of

12  such corporation and listed as an officer of such corporation

13  with the Division of Corporations of the Department of State,

14  in order to elect alternative coverage exemptions under this

15  chapter. For purposes of this subparagraph, the term

16  "affiliated" means and includes one or more corporations or

17  entities, any one of which is a corporation engaged in the

18  construction industry, under the same or substantially the

19  same control of a group of business entities which are

20  connected or associated so that one entity controls or has the

21  power to control each of the other business entities. The term

22  "affiliated" includes, but is not limited to, the officers,

23  directors, executives, shareholders active in management,

24  employees, and agents of the affiliated corporation. The

25  ownership by one business entity of a controlling interest in

26  another business entity or a pooling of equipment or income

27  among business entities shall be prima facie evidence that one

28  business is affiliated with the other.

29         3.  An officer of a corporation who elects alternative

30  coverage under to be exempt from this chapter by filing a

31  

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 1  written notice of the election with the department as provided

 2  in s. 440.05 is not an employee.

 3  

 4  Services are presumed to have been rendered to the corporation

 5  if the officer is compensated by other than dividends upon

 6  shares of stock of the corporation which the officer owns.

 7         (c)  "Employee" includes:

 8         1.  A sole proprietor or a partner who is not engaged

 9  in the construction industry, devotes full time to the

10  proprietorship or partnership, and has not elected alternative

11  coverage under this chapter elects to be included in the

12  definition of employee by filing notice thereof as provided in

13  s. 440.05.

14         2.  All persons who are being paid by a construction

15  contractor as a subcontractor, unless the subcontractor has

16  validly elected alternative coverage an exemption as permitted

17  by this chapter, or has otherwise secured the payment of

18  compensation coverage as a subcontractor, consistent with s.

19  440.10, for work performed by or as a subcontractor.

20         3.  An independent contractor working or performing

21  services in the construction industry.

22         4.  A sole proprietor who engages in the construction

23  industry and a partner or partnership that is engaged in the

24  construction industry.

25         (d)  "Employee" does not include:

26         1.  An independent contractor who is not engaged in the

27  construction industry.

28         a.  In order to meet the definition of independent

29  contractor, at least four of the following criteria must be

30  met:

31  

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 1         (I)  The independent contractor maintains a separate

 2  business with his or her own work facility, truck, equipment,

 3  materials, or similar accommodations;

 4         (II)  The independent contractor holds or has applied

 5  for a federal employer identification number, unless the

 6  independent contractor is a sole proprietor who is not

 7  required to obtain a federal employer identification number

 8  under state or federal regulations;

 9         (III)  The independent contractor receives compensation

10  for services rendered or work performed and such compensation

11  is paid to a business rather than to an individual;

12         (IV)  The independent contractor holds one or more bank

13  accounts in the name of the business entity for purposes of

14  paying business expenses or other expenses related to services

15  rendered or work performed for compensation;

16         (V)  The independent contractor performs work or is

17  able to perform work for any entity in addition to or besides

18  the employer at his or her own election without the necessity

19  of completing an employment application or process; or

20         (VI)  The independent contractor receives compensation

21  for work or services rendered on a competitive-bid basis or

22  completion of a task or a set of tasks as defined by a

23  contractual agreement, unless such contractual agreement

24  expressly states that an employment relationship exists.

25         b.  If four of the criteria listed in sub-subparagraph

26  a. do not exist, an individual may still be presumed to be an

27  independent contractor and not an employee based on full

28  consideration of the nature of the individual situation with

29  regard to satisfying any of the following conditions:

30         (I)  The independent contractor performs or agrees to

31  perform specific services or work for a specific amount of

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 1  money and controls the means of performing the services or

 2  work.

 3         (II)  The independent contractor incurs the principal

 4  expenses related to the service or work that he or she

 5  performs or agrees to perform.

 6         (III)  The independent contractor is responsible for

 7  the satisfactory completion of the work or services that he or

 8  she performs or agrees to perform.

 9         (IV)  The independent contractor receives compensation

10  for work or services performed for a commission or on a

11  per-job basis and not on any other basis.

12         (V)  The independent contractor may realize a profit or

13  suffer a loss in connection with performing work or services.

14         (VI)  The independent contractor has continuing or

15  recurring business liabilities or obligations.

16         (VII)  The success or failure of the independent

17  contractor's business depends on the relationship of business

18  receipts to expenditures.

19         c.  Notwithstanding anything to the contrary in this

20  subparagraph, an individual claiming to be an independent

21  contractor has the burden of proving that he or she is an

22  independent contractor for purposes of this chapter.

23         2.  A real estate licensee, if that person agrees, in

24  writing, to perform for remuneration solely by way of

25  commission.

26         3.  Bands, orchestras, and musical and theatrical

27  performers, including disk jockeys, performing in licensed

28  premises as defined in chapter 562, if a written contract

29  evidencing an independent contractor relationship is entered

30  into before the commencement of such entertainment.

31  

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 1         4.  An owner-operator of a motor vehicle who transports

 2  property under a written contract with a motor carrier which

 3  evidences a relationship by which the owner-operator assumes

 4  the responsibility of an employer for the performance of the

 5  contract, if the owner-operator is required to furnish the

 6  necessary motor vehicle equipment and all costs incidental to

 7  the performance of the contract, including, but not limited

 8  to, fuel, taxes, licenses, repairs, and hired help; and the

 9  owner-operator is paid a commission for transportation service

10  and is not paid by the hour or on some other time-measured

11  basis.

12         5.  A person whose employment is both casual and not in

13  the course of the trade, business, profession, or occupation

14  of the employer.

15         6.  A volunteer, except a volunteer worker for the

16  state or a county, municipality, or other governmental entity.

17  A person who does not receive monetary remuneration for

18  services is presumed to be a volunteer unless there is

19  substantial evidence that a valuable consideration was

20  intended by both employer and employee. For purposes of this

21  chapter, the term "volunteer" includes, but is not limited to:

22         a.  Persons who serve in private nonprofit agencies and

23  who receive no compensation other than expenses in an amount

24  less than or equivalent to the standard mileage and per diem

25  expenses provided to salaried employees in the same agency or,

26  if such agency does not have salaried employees who receive

27  mileage and per diem, then such volunteers who receive no

28  compensation other than expenses in an amount less than or

29  equivalent to the customary mileage and per diem paid to

30  salaried workers in the community as determined by the

31  department; and

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 1         b.  Volunteers participating in federal programs

 2  established under Pub. L. No. 93-113.

 3         7.  Unless otherwise prohibited by this chapter, any

 4  officer of a corporation who elects alternative coverage to be

 5  exempt from this chapter. Such officer is not an employee for

 6  any reason under this chapter until the notice of revocation

 7  of alternative coverage election filed pursuant to s. 440.05

 8  is effective.

 9         8.  An officer of a corporation that is engaged in the

10  construction industry who elects alternative coverage to be

11  exempt from the provisions of this chapter, as otherwise

12  permitted by this chapter. Such officer is not an employee for

13  any reason until the notice of revocation of alternative

14  coverage election filed pursuant to s. 440.05 is effective.

15         9.  An exercise rider who does not work for a single

16  horse farm or breeder, and who is compensated for riding on a

17  case-by-case basis, provided a written contract is entered

18  into prior to the commencement of such activity which

19  evidences that an employee/employer relationship does not

20  exist.

21         10.  A taxicab, limousine, or other passenger

22  vehicle-for-hire driver who operates said vehicles pursuant to

23  a written agreement with a company which provides any

24  dispatch, marketing, insurance, communications, or other

25  services under which the driver and any fees or charges paid

26  by the driver to the company for such services are not

27  conditioned upon, or expressed as a proportion of, fare

28  revenues.

29         11.  A person who performs services as a sports

30  official for an entity sponsoring an interscholastic sports

31  event or for a public entity or private, nonprofit

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 1  organization that sponsors an amateur sports event. For

 2  purposes of this subparagraph, such a person is an independent

 3  contractor. For purposes of this subparagraph, the term

 4  "sports official" means any person who is a neutral

 5  participant in a sports event, including, but not limited to,

 6  umpires, referees, judges, linespersons, scorekeepers, or

 7  timekeepers. This subparagraph does not apply to any person

 8  employed by a district school board who serves as a sports

 9  official as required by the employing school board or who

10  serves as a sports official as part of his or her

11  responsibilities during normal school hours.

12         12.  Medicaid-enrolled clients under chapter 393 who

13  are excluded from the definition of employment under s.

14  443.036(21)(d)5. and served by Adult Day Training Services

15  under the Home and Community-Based Medicaid Waiver program in

16  a sheltered workshop setting licensed by the United States

17  Department of Labor for the purpose of training and earning

18  less than the federal hourly minimum wage.

19         (16)(a)  "Employer" means the state and all political

20  subdivisions thereof, all public and quasi-public corporations

21  therein, every person carrying on any employment, and the

22  legal representative of a deceased person or the receiver or

23  trustees of any person. The term includes an employment

24  agency, an employee leasing company, or a similar agent that

25  provides employees to other persons. The term does not include

26  a registry licensed under s. 400.506. "Employer" also includes

27  employment agencies, employee leasing companies, and similar

28  agents who provide employees to other persons. If the employer

29  is a corporation, parties in actual control of the

30  corporation, including, but not limited to, the president,

31  officers who exercise broad corporate powers, directors, and

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 1  all shareholders who directly or indirectly own a controlling

 2  interest in the corporation, are considered the employer for

 3  the purposes of ss. 440.105, 440.106, and 440.107.

 4         (b)  A homeowner shall not be considered the employer

 5  of persons hired by the homeowner to carry out construction on

 6  the homeowner's own premises if those premises are not

 7  intended for immediate lease, sale, or resale.

 8         (c)  Facilities serving individuals under subparagraph

 9  (15)(d)9. (15)(d)12. shall be considered agents of the Agency

10  for Health Care Administration as it relates to providing

11  Adult Day Training Services under the Home and Community-Based

12  Medicaid Waiver program and not employers or third parties for

13  the purpose of limiting or denying Medicaid benefits.

14         (17)(a)  "Employment," subject to the other provisions

15  of this chapter, means any service performed by an employee

16  for the person employing him or her.

17         (b)  "Employment" includes:

18         1.  Employment by the state and all political

19  subdivisions thereof and all public and quasi-public

20  corporations therein, including officers elected at the polls.

21         2.  All private employments in which one four or more

22  employees are employed by the same employer or, with respect

23  to the construction industry, all private employment in which

24  one or more employees are employed by the same employer.

25         3.  Volunteer firefighters responding to or assisting

26  with fire or medical emergencies whether or not the

27  firefighters are on duty.

28         (c)  "Employment" does not include service performed by

29  or as:

30         1.  Domestic servants in private homes.

31  

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 1         2.  Agricultural labor performed on a farm in the

 2  employ of a bona fide farmer, or association of farmers, that

 3  employs 5 or fewer regular employees and that employs fewer

 4  than 12 other employees at one time for seasonal agricultural

 5  labor that is completed in less than 30 days, provided such

 6  seasonal employment does not exceed 45 days in the same

 7  calendar year. The term "farm" includes stock, dairy, poultry,

 8  fruit, fur-bearing animals, fish, and truck farms, ranches,

 9  nurseries, and orchards. The term "agricultural labor"

10  includes field foremen, timekeepers, checkers, and other farm

11  labor supervisory personnel.

12         3.  Professional athletes, such as professional boxers,

13  wrestlers, baseball, football, basketball, hockey, polo,

14  tennis, jai alai, and similar players, and motorsports teams

15  competing in a motor racing event as defined in s. 549.08.

16         4.  Labor under a sentence of a court to perform

17  community services as provided in s. 316.193.

18         5.  State prisoners or county inmates, except those

19  performing services for private employers or those enumerated

20  in s. 948.03(8)(a).

21         Section 6.  Subsection (3) of section 440.04, Florida

22  Statutes, is amended to read:

23         440.04  Waiver of exemption.--

24         (3)  A corporate officer who has elected alternative

25  coverage under exempted herself or himself by proper notice

26  from the operation of this chapter may at any time revoke such

27  election exemption and thereby accept the provisions of this

28  chapter by giving notice as provided in s. 440.05.

29         Section 7.  Section 440.05, Florida Statutes, is

30  amended to read:

31  

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 1         440.05  Election of alternative coverage exemption;

 2  revocation of election; notice; certification.--

 3         (1)  Each corporate officer who elects alternative

 4  coverage under not to accept the provisions of this chapter or

 5  who, after making electing such election exemption, revokes it

 6  that exemption shall mail to the department in Tallahassee

 7  notice to such effect in accordance with a form to be

 8  prescribed by the department.

 9         (2)  Each sole proprietor or partner who elects

10  alternative coverage under this chapter to be included in the

11  definition of "employee" or who, after such election, revokes

12  that election must mail to the department in Tallahassee

13  notice to such effect, in accordance with a form to be

14  prescribed by the department.

15         (3)  Each officer of a corporation who is engaged in

16  the construction industry and who elects alternative coverage

17  under an exemption from this chapter or who, after electing

18  such coverage exemption, revokes that election exemption, must

19  mail a written notice to such effect to the department on a

20  form prescribed by the department. The notice of election of

21  alternative coverage to be exempt from the provisions of this

22  chapter must be notarized and under oath. The notice of

23  election that to be exempt which is submitted to the

24  department by the officer of a corporation who is allowed to

25  do so claim an exemption as provided by this chapter must list

26  the name, federal tax identification number, social security

27  number, all certified or registered licenses issued pursuant

28  to chapter 489 held by the person seeking the alternative

29  coverage exemption, a copy of relevant documentation as to

30  employment status filed with the Internal Revenue Service as

31  specified by the department, a copy of the relevant

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    Florida Senate - 2004                                  SB 2232
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 1  occupational license in the primary jurisdiction of the

 2  business, and the registration number of the corporation filed

 3  with the Division of Corporations of the Department of State

 4  along with a copy of the stock certificate evidencing the

 5  required ownership under this chapter. The notice of election

 6  to be exempt must identify each corporation that employs the

 7  person making the election electing the exemption and must

 8  list the social security number or federal tax identification

 9  number of each such employer and the additional documentation

10  required by this section. In addition, the notice of election

11  to be exempt must provide that the officer electing an

12  exemption is not entitled to benefits under this chapter, must

13  provide that the election does not exceed exemption limits for

14  officers provided in s. 440.02, and must certify that any

15  employees of the corporation whose officer elects alternative

16  coverage an exemption are covered by workers' compensation

17  insurance or, if applicable, alternative coverage. Upon

18  receipt of the notice of the election to be exempt, receipt of

19  all application fees, and a determination by the department

20  that the notice meets the requirements of this subsection, the

21  department shall issue a certification of the election to the

22  officer, unless the department determines that the information

23  contained in the notice is invalid. The department shall

24  revoke a certificate of election to be exempt from coverage

25  upon a determination by the department that the person does

26  not meet the requirements for alternative coverage exemption

27  or that the information contained in the notice of election to

28  be exempt is invalid. The certificate of election must list

29  the name of the corporation listed in the notice of election

30  request for exemption. A new certificate of election must be

31  obtained each time the person is employed by a new or

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    Florida Senate - 2004                                  SB 2232
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 1  different corporation that is not listed on the certificate of

 2  election. A copy of the certificate of election must be sent

 3  to each workers' compensation carrier identified in the

 4  request for exemption. Upon filing a notice of revocation of

 5  election, an officer who is a subcontractor or an officer of a

 6  corporate subcontractor must notify her or his contractor.

 7  Upon revocation of a certificate of election of exemption by

 8  the department, the department shall notify the workers'

 9  compensation carriers identified in the notice of election

10  request for exemption.

11         (4)  The notice of election of alternative coverage to

12  be exempt from the provisions of this chapter must contain a

13  notice that clearly states in substance the following: "Any

14  person who, knowingly and with intent to injure, defraud, or

15  deceive the department or any employer or employee, insurance

16  company, or any other person, files a notice of election of

17  alternative coverage to be exempt containing any false or

18  misleading information is guilty of a felony of the third

19  degree." Each person filing a notice of election to be exempt

20  shall personally sign the notice and attest that he or she has

21  reviewed, understands, and acknowledges the foregoing notice.

22         (5)  A notice given under subsection (1), subsection

23  (2), or subsection (3) shall become effective when issued by

24  the department or 30 days after an application for alternative

25  coverage an exemption is received by the department, whichever

26  occurs first. However, if an accident or occupational disease

27  occurs less than 30 days after the effective date of the

28  insurance policy under which the payment of compensation is

29  secured or the date the employer qualified as a self-insurer,

30  such notice is effective as of 12:01 a.m. of the day following

31  the date it is mailed to the department in Tallahassee.

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 1         (6)  A construction industry certificate of election of

 2  alternative coverage to be exempt which is issued in

 3  accordance with this section shall be valid for 2 years after

 4  the effective date stated thereon. Both the effective date and

 5  the expiration date must be listed on the face of the

 6  certificate by the department. The construction industry

 7  certificate must expire at midnight, 2 years from its issue

 8  date, as noted on the face of the exemption certificate. Any

 9  person who has received from the department a construction

10  industry certificate of election to be exempt which is in

11  effect on December 31, 1998, shall file a new notice of

12  election to be exempt by the last day in his or her birth

13  month following December 1, 1998. A construction industry

14  certificate of election to be exempt may be revoked before its

15  expiration by the officer for whom it was issued or by the

16  department for the reasons stated in this section.  At least

17  60 days prior to the expiration date of a construction

18  industry certificate of election exemption issued after

19  December 1, 1998, the department shall send notice of the

20  expiration date and an application for renewal to the

21  certificateholder at the address on the certificate.

22         (7)  Any contractor responsible for compensation under

23  s. 440.10 may register in writing with the workers'

24  compensation carrier for any subcontractor and shall

25  thereafter be entitled to receive written notice from the

26  carrier of any cancellation or nonrenewal of the policy.

27         (8)(a)  The department must assess a fee of $50 with

28  each request for a construction industry certificate of

29  election of alternative coverage to be exempt or renewal of

30  election of alternative coverage to be exempt under this

31  section.

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    Florida Senate - 2004                                  SB 2232
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 1         (b)  The funds collected by the department shall be

 2  used to administer this section, to audit the businesses that

 3  pay the fee for compliance with any requirements of this

 4  chapter, and to enforce compliance with the provisions of this

 5  chapter.

 6         (9)  The department may by rule prescribe forms and

 7  procedures for filing an election of alternative coverage

 8  exemption, revocation of election to be exempt, and notice of

 9  election of coverage for all employers and require specified

10  forms to be submitted by all employers in filing for the

11  election of alternative coverage exemption. The department may

12  by rule prescribe forms and procedures for issuing a

13  certificate of the election of alternative coverage exemption.

14         (10)  Each officer of a corporation who is actively

15  engaged in the construction industry and who elects

16  alternative coverage an exemption from this chapter shall

17  maintain business records as specified by the department by

18  rule, which rules must include the provision that any

19  corporation with exempt officers having alternative coverage

20  engaged in the construction industry must maintain written

21  statements of those exempted persons affirmatively

22  acknowledging each such individual's exempt status.

23         (11)  Any corporate officer permitted by this chapter

24  to elect alternative coverage claim an exemption must be

25  listed on the records of this state's Secretary of State,

26  Division of Corporations, as a corporate officer. The

27  department shall issue a stop-work order under s. 440.107(1)

28  to any corporation who employs a person who claims to be

29  eligible for alternative coverage under this chapter exempt as

30  a corporate officer but who fails or refuses to produce the

31  

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    Florida Senate - 2004                                  SB 2232
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 1  documents required under this subsection to the department

 2  within 3 business days after the request is made.

 3         (12)  Certificates of election of alternative coverage

 4  to be exempt issued under subsection (3) shall apply only to

 5  the corporate officer named on the notice of election to be

 6  exempt and apply only within the scope of the business or

 7  trade listed on the notice of election to be exempt.

 8         (13)  Notices of election of alternative coverage to be

 9  exempt and certificates of election of alternative coverage to

10  be exempt shall be subject to revocation if, at any time after

11  the filing of the notice or the issuance of the certificate,

12  the person named on the notice or certificate no longer meets

13  the requirements of this section for issuance of a

14  certificate. The department shall revoke a certificate at any

15  time for failure of the person named on the certificate to

16  meet the requirements of this section.

17         (14)  An officer of a corporation who elects

18  alternative coverage exemption from this chapter by filing a

19  certificate of election under this section may not recover

20  benefits or compensation under this chapter other than the

21  benefits provided by the alternative coverage. For purposes of

22  determining the appropriate premium for workers' compensation

23  coverage, carriers may not consider any officer of a

24  corporation who validly meets the requirements of this section

25  to be an employee.

26         (15)  Any corporate officer who is an affiliated person

27  of a person who is delinquent in paying a stop-work order and

28  penalty assessment order issued pursuant to s. 440.107, or

29  owed pursuant to a court order, is ineligible for an election

30  of alternative coverage exemption. The stop-work order and

31  penalty assessment shall be in effect against any such

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    Florida Senate - 2004                                  SB 2232
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 1  affiliated person. As used in this subsection, the term

 2  "affiliated person" means:

 3         (a)  The spouse of such other person;

 4         (b)  Any person who directly or indirectly owns or

 5  controls, or holds with the power to vote, 10 percent or more

 6  of the outstanding voting securities of such other person;

 7         (c)  Any person who directly or indirectly owns 10

 8  percent or more of the outstanding voting securities that are

 9  directly or indirectly owned, controlled, or held with the

10  power to vote by such other person;

11         (d)  Any person or group of persons who directly or

12  indirectly control, are controlled by, or are under common

13  control with such other person;

14         (e)  Any person who directly or indirectly acquires all

15  or substantially all of the other assets of such other person;

16         (f)  Any officer, director, trustee, partner, owner,

17  manager, joint venturer, or employee of such other person or a

18  person performing duties similar to persons in such positions;

19  or

20         (g)  Any person who has an officer, director, trustee,

21  partner, or joint venturer in common with such person.

22         Section 8.  Paragraphs (c) and (d) of subsection (1) of

23  section 440.10, Florida Statutes, are amended to read:

24         440.10  Liability for compensation.--

25         (1)

26         (c)  A contractor shall require a subcontractor to

27  provide evidence of workers' compensation insurance. A

28  subcontractor who is a corporation and has an officer who

29  elects alternative coverage to be exempt as permitted under

30  this chapter shall provide a copy of his or her certificate of

31  alternative coverage exemption to the contractor.

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    Florida Senate - 2004                                  SB 2232
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 1         (d)1.  If a contractor becomes liable for the payment

 2  of compensation to the employees of a subcontractor who has

 3  failed to secure such payment in violation of s. 440.38, the

 4  contractor or other third-party payor shall be entitled to

 5  recover from the subcontractor all benefits paid or payable

 6  plus interest unless the contractor and subcontractor have

 7  agreed in writing that the contractor will provide coverage.

 8         2.  If a contractor or third-party payor becomes liable

 9  for the payment of compensation to the corporate officer of a

10  subcontractor who is engaged in the construction industry and

11  has elected alternative coverage under to be exempt from the

12  provisions of this chapter, but whose election is invalid, the

13  contractor or third-party payor may recover from the claimant

14  or corporation all benefits paid or payable plus interest,

15  unless the contractor and the subcontractor have agreed in

16  writing that the contractor will provide coverage.

17         Section 9.  Paragraph (a) of subsection (2) and

18  paragraph (b) of subsection (4) of section 440.105, Florida

19  Statutes, are amended to read:

20         440.105  Prohibited activities; reports; penalties;

21  limitations.--

22         (2)  Whoever violates any provision of this subsection

23  commits a misdemeanor of the first degree, punishable as

24  provided in s. 775.082 or s. 775.083.

25         (a)  It shall be unlawful for any employer to

26  knowingly:

27         1.  Coerce or attempt to coerce, as a precondition to

28  employment or otherwise, an employee to obtain a certificate

29  of election of alternative coverage exemption pursuant to s.

30  440.05.

31  

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    Florida Senate - 2004                                  SB 2232
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 1         2.  Discharge or refuse to hire an employee or job

 2  applicant because the employee or applicant has filed a claim

 3  for benefits under this chapter.

 4         3.  Discharge, discipline, or take any other adverse

 5  personnel action against any employee for disclosing

 6  information to the department or any law enforcement agency

 7  relating to any violation or suspected violation of any of the

 8  provisions of this chapter or rules promulgated hereunder.

 9         4.  Violate a stop-work order issued by the department

10  pursuant to s. 440.107.

11         (4)  Whoever violates any provision of this subsection

12  commits insurance fraud, punishable as provided in paragraph

13  (f).

14         (b)  It shall be unlawful for any person:

15         1.  To knowingly make, or cause to be made, any false,

16  fraudulent, or misleading oral or written statement for the

17  purpose of obtaining or denying any benefit or payment under

18  this chapter.

19         2.  To present or cause to be presented any written or

20  oral statement as part of, or in support of, a claim for

21  payment or other benefit pursuant to any provision of this

22  chapter, knowing that such statement contains any false,

23  incomplete, or misleading information concerning any fact or

24  thing material to such claim.

25         3.  To prepare or cause to be prepared any written or

26  oral statement that is intended to be presented to any

27  employer, insurance company, or self-insured program in

28  connection with, or in support of, any claim for payment or

29  other benefit pursuant to any provision of this chapter,

30  knowing that such statement contains any false, incomplete, or

31  

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 1  misleading information concerning any fact or thing material

 2  to such claim.

 3         4.  To knowingly assist, conspire with, or urge any

 4  person to engage in activity prohibited by this section.

 5         5.  To knowingly make any false, fraudulent, or

 6  misleading oral or written statement, or to knowingly omit or

 7  conceal material information, required by s. 440.185 or s.

 8  440.381, for the purpose of obtaining workers' compensation

 9  coverage or for the purpose of avoiding, delaying, or

10  diminishing the amount of payment of any workers' compensation

11  premiums.

12         6.  To knowingly misrepresent or conceal payroll,

13  classification of workers, or information regarding an

14  employer's loss history which would be material to the

15  computation and application of an experience rating

16  modification factor for the purpose of avoiding or diminishing

17  the amount of payment of any workers' compensation premiums.

18         7.  To knowingly present or cause to be presented any

19  false, fraudulent, or misleading oral or written statement to

20  any person as evidence of compliance with s. 440.38, as

21  evidence of eligibility for a certificate of alternative

22  coverage exemption under s. 440.05.

23         8.  To knowingly violate a stop-work order issued by

24  the department pursuant to s. 440.107.

25         9.  To knowingly present or cause to be presented any

26  false, fraudulent, or misleading oral or written statement to

27  any person as evidence of identity for the purpose of

28  obtaining employment or filing or supporting a claim for

29  workers' compensation benefits.

30         Section 10.  Paragraph (d) of subsection (5) of section

31  489.115, Florida Statutes, is amended to read:

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 1         489.115  Certification and registration; endorsement;

 2  reciprocity; renewals; continuing education.--

 3         (5)

 4         (d)  An applicant for initial issuance of a certificate

 5  or registration shall submit as a prerequisite to qualifying

 6  for alternative an exemption from workers' compensation

 7  coverage requirements under s. 440.05 an affidavit attesting

 8  to the fact that the applicant will obtain such alternative

 9  coverage an exemption within 30 days after the date the

10  initial certificate or registration is issued by the board.

11         Section 11.  Paragraph (b) of subsection (3) of section

12  489.515, Florida Statutes, is amended to read:

13         489.515  Issuance of certificates; registrations.--

14         (3)

15         (b)  An applicant for initial issuance of a certificate

16  or registration shall submit as a prerequisite to qualifying

17  for alternative an exemption from workers' compensation

18  coverage requirements under s. 440.05 an affidavit attesting

19  to the fact that the applicant will obtain such alternative

20  coverage an exemption within 30 days after the date the

21  initial certificate or registration is issued by the board.

22         Section 12.  Except for this section and section

23  440.095(9), Florida Statutes, as created by section 4 of this

24  act, which shall take effect upon becoming a law, this act

25  shall take effect January 1, 2005.

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    Florida Senate - 2004                                  SB 2232
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Deletes authority of certain persons to elect to be
      exempt from workers' compensation coverage. The new
 4    alternative will be regular workers' compensation
      coverage or an alternative coverage for accidents only,
 5    whether work-related or not work-related. Provides
      standards for alternative coverage and a schedule of
 6    benefits payable for catastrophic injuries. (See bill for
      details.)
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