Workers' Compensation Law Summaries

Florida's workers' compensation law is located in the Florida Statutes at Ch. 440.

DEFINITIONS

"Employee," for purposes of the workers' compensation law, means any individual who is engaged in any employment --appointed, under contract of hire or apprenticeship (express, implied, oral or written), whether lawfully or unlawfully employed and includes, but is not limited to aliens and minors and an officer of a corporation. An independent contractor is an employee unless he or she meets all of the statutory requirements for being an independent contractor (Sec. 440.02).

"Casual" refers only to employments for work that is anticipated to be completed in 10 working days or less, without regard to the number of persons employed, and at a total labor cost of less than $500 (Sec. 440.02).

COVERAGE

Workers' compensation coverage is compulsory for employers of four or more and for employers of one or more in construction or a construction-related trade in Florida (Secs. 440.02(15), 440.03, 440.09 and 440.10). Corporate officers, partners (Sec. 440.02) and sole proprietors may elect coverage, but officers of a construction or construction-related company may reject coverage for up to three officers (Sec. 440.02). All state and political subdivisions must provide coverage for employees, including volunteers but excluding elected officials (Sec. 440.02(15).

An injury to a law enforcement officer, during the officer's work period or while going to or coming from work in an official law enforcement vehicle, is presumed to be an injury arising out of and in the course of employment unless the injury occurred during a distinct deviation for a nonessential personal errand. However, when an employer's policy or a collective bargaining agreement permits the officer to take such deviations for nonessential errands, the injury will be presumed to arise out of and in the course of employment. (Sec. 440.092).

EXCEPTIONS

Certain officers of a corporation may elect to be exempt by filing written notice with the department. In the case of a construction company, no more than three officers of a corporation or a group of affiliated companies may elect to be exempt (Sec. 440.02).

Not included in compulsory coverage are domestics, casual employees, 12 or fewer casual or five or fewer regular farm laborers, most independent contractors, real estate salespersons soleoy on commission, professional athletes, owner/operators of motor vehicles who are under a written contract with a motor carrier and assume the principal responsibility for carrying out the contract, and volunteers --except those volunteering for a government entity but including fire fighters. Sports officials and state and county prison inmates not providing services for private employers are excluded too (Sec. 440.02(14).

Excepted employments may elect coverage by waiving the exemption (Sec. 440.04).

WHAT THE EMPLOYER MUST DO

Insurance choices. --Employers may purchase private insurance, self-insure, public-utility self-insurance, enter a local government pool, provide 24-hour health insurance or join an individual self-insurer's pool (Secs. 440.38 and 440.57). An employer applying for building permits must show proof and certify it has secured compensation (Sec. 440.103).

Reports and records. --The division of workers' compensation may establish an electronic reporting system requiring or authorizing an employer or carrier to submit required forms, reports or other information electronically (Sec. 440.593).

Waiting period. --No workers' compensation benefits, other than medical services and supplies, are paid for the first seven days of a disability. If the disability lasts more than 21 days, benefits are payable from the start of the disability (Sec. 440.12).

Choice of physician. --If the employee objects to the physician furnished by the employer, the employer must select another physician unless a judge of compensation claims determines that a change of physicians is not in the employee's best interest. In addition, a judge of compensation claims may order a change in physician (Sec. 440.13).

Additionally, upon the written request of the employee, the carrier must give the employee the opportunity for one change of physician during the course of treatment for any one accident. The employee is entitled to select another physician from among not fewer than three carrier-authorized physicians who are not professionally affiliated (Sec. 440.13).

Offset provisions. --If an employee is entitled to both wage-loss benefits under the state workers' compensation law and Social Security retirement benefits, the Social Security retirement benefits will be primary and the wage-loss benefits supplementary. The sum of the combined benefits may not exceed the amount of wage-loss benefits that would otherwise be payable.

Weekly compensation benefits for disability are offset by the amount of any federal OASDI payments and the total benefits may not exceed 80% of the claimant's average weekly wage.

No weekly compensation payments are made for temporary or permanent total disability under the state workers' compensation law for any week in which unemployment compensation benefits are paid. In addition, wage-loss benefits for temporary partial disability are offset by the amount of any unemployment compensation benefits paid.

Workers' compensation benefits received by a migrant worker are offset 100% by any benefits received under the Migrant and Seasonal Worker Protection Act.

Premium discounts. --An employer implementing a drugfree workplace program or a written safety program may qualify for premium discounts (Secs. 440.1025 and 627.0915).

Drug and alcohol use. --No compensation is payable if an accident was primarily due to the intoxication of the employee, the influence of any drugs, barbiturates or other stimulants that were not prescribed by a physician.

If an employer has reason to believe that a work-related injury was caused primarily by the intoxication of the employee or the employee's use of any drug that affected the employee to the extent that the employee's normal faculties were impaired, and the employer has not implemented a drug-free workplace, the employer may require that the employee submit to a test for the presence of any or all drugs or alcohol.

If an employee refuses to submit to a drug test, the presumption is that the injury was caused primarily by the influence of drugs. In addition, a rebuttable presumption is raised that an on-the-job accident or injury was caused by the employee's intoxication or being under the influence of drugs if testing shows a specified level of drugs or alcohol in the employee's system or the employee. The employee may rebut the presumption by showing that the intoxication or influence of drugs did not contribute to the injury (Sec. 440.09)..

Drug-free workplace. --If an employer institutes a drug-free workplace program that includes notice, education and procedural requirements for testing for drugs and alcohol, as established by the Division of Workers' Compensation, the employer may require that an employee submit to a test for the presence of drugs or alcohol. If a drug or alcohol is found to be present in the employee's system at an unacceptable level, the employee may be terminated and forfeits eligibility for medical and indemnity benefits. A Florida appellate court has held that a causal relationship between a positive drug test and a work-related accident or injury must be established before benefits may be denied.

If an employer does not have a drug-testing program, it must ensure that at least 60 days elapse between a general one-time notice to all employees that a drug-testing program is being implemented and the start of actual testing.

Confirmation of negative initial drug tests is discretionary. Confirmation of positive results is required.

The employer must pay the cost of all drug tests, initial and confirmation, that the employer requires. The employee or job applicant must pay the cost of any additional tests that are not required by the employer (Secs. 112.0455 and 440.101 --440.102).

Before beginning its drug-free workplace program, an employer must notify all employees in writing that it is a condition of employment to refrain from taking drugs on or off the job. Then, if an employee is injured and refuses to submit to a test for drugs or alcohol, the employee forfeits eligibility for medical and indemnity benefits under the workers' compensation law.

The employer's written drug-free workplace policy must contain the following information:

(1) The types of drug testing an employee or job applicant may be required to submit to;

(2) The actions the employer may take against an employee or job applicant;

(3) A statement advising the employee or job applicant of the drug-free workplace law;

(4) A general statement concerning confidentiality;

(5) Procedures for employees and job applicants to confidentially report the use of prescription or nonprescription medications both before and after being tested;

(6) A list of the most common medications by brand name, common name or chemical name that may alter or affect a drug test;

(7) The consequences of refusing to submit to a drug test;

(8) Names, addresses and telephone numbers of employee assistance programs and local alcohol and drug rehabilitation programs;

(9) The procedures for contesting or explaining the result of a positive drug test to the employer within five working days after written notification of the positive test result and for further challenge if the employer finds the explanation or challenge unsatisfactory;

(10) A statement informing the employee or job applicant of the responsibility to notify the laboratory of any administrative or civil action brought pursuant to this law;

(11) A list of all drugs for which the employer will test by brand name, common name or chemical name;

(12) A statement regarding any applicable collective bargaining agreement or contract and the right to appeal to the Public Employees Relations Commission or an appropriate court; and

(13) A statement notifying employees and job applicants of their right to consult the testing laboratory for technical information regarding prescription and nonprescription drugs.

In order to require that an employee submit to a drug or alcohol test, there must be a reasonable suspicion that the employee is or has used drugs in violation of the employer's drug-free workplace policy.

Reasonable suspicion may be based on :

(1) Direct observation of drug or alcohol use or of the physical symptoms of being under the influence of drugs or alcohol;

(2) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;

(3) A report of drug or alcohol use provided by a reliable and credible source;

(4) Evidence of tampering with a drug test in the current employment;

(5) Information that an employee has caused, contributed to or been involved in an accident at work; or

(6) Evidence that an employee has used, possessed, sold, solicited or transferred drugs while working, while on the employer's premises or while operating the employer's vehicle, machinery or equipment (Secs. 440.101 and 440.102).

NOTICE

Notice by the employee must be given in writing to the employer within 30 days after an injury; failure of notice is excusable in specific circumstances (Sec. 440.185).

POSTING

Every employer that has workers' compensation coverage as required by law must keep posted in a conspicuous place or places in and about the employer's place or places of business typewritten or printed notices, in a form prescribed by the workers' compensation division, stating that the employer has secured the payment of workers' compensation as required by law. The notices must contain the name and address of the carrier, if any, with whom the employer has secured payment of compensation and the date the policy expires. The employer must also post a notice concerning the antifraud reward program (Sec. 440.40).

An employer who employs less than four employees and who elects not to secure compensation must post written notice in a conspicuous place at each worksite to inform employees (Sec. 440.055).

CONTACTS

Division of Workers' Compensation, 200 East Gaines Street, Tallahassee, FL 32399-0300, 850-413-1600.

This is a summary of Workers' Compensation Laws in Florida.