CHAPTER 145
HB 1368 – FINAL VERSION
17Feb2010… 0374h
05/12/10 1967s
05/12/10 2024s
2010 SESSION
01/10
HOUSE BILL 1368
AN ACT relative to the definition of “employee” for workers’ compensation purposes and relative to the New Hampshire return to work program.
SPONSORS: Rep. Goley, Hills 8; Rep. Craig, Hills 9; Rep. R. Holden, Hills 7; Rep. Baroody, Hills 13; Sen. DeVries, Dist 18; Sen. Cilley, Dist 6
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill clarifies the evidence required to establish the relationship between the employer and the person providing services under the workers’ compensation law. The bill also provides that participants in the department of employment security’s return to work program shall be entitled to certain unemployment compensation benefits.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
17Feb2010… 0374h
05/12/10 1967s
05/12/10 2024s
10-2413
01/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to the definition of “employee” for workers’ compensation purposes and relative to the New Hampshire return to work program.
Be it Enacted by the Senate and House of Representatives in General Court convened:
145:1 Workers’ Compensation; Definition of “Employee.” Amend RSA 281-A:2, VI(c) to read as follows:
(c) A written agreement signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with each of the criteria in subparagraphs (b)(1)(A)-(L) is prima facie evidence that the criteria have been met. [Prima facie evidence that the criteria prescribed in subparagraphs (b)(1)(A)-(L) have been met may be established by a written agreement signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with each of the criteria.] Nothing in this subparagraph shall require such an agreement to establish that the criteria have been met.
(d) If the commissioner finds that [the employer’s use of such written agreement was intended to misrepresent] an employer has misrepresented the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500; in addition, such employer [shall] may be assessed a civil penalty of $100 per employee for each day of noncompliance. The fines [shall] may be assessed from the first day of the infraction but not to exceed one year. Notwithstanding any provision of law to the contrary, any person with control or responsibility over decisions to disburse funds and salaries and who knowingly violates the provisions of this subparagraph shall be held personally liable for payments of fines. All funds collected under this subparagraph shall be continually appropriated and deposited into a nonlapsing workers’ compensation fraud fund dedicated to the investigation and compliance activities required by this section and related sections pertaining to labor and insurance law. The commissioner of labor shall appoint as many individuals as necessary to carry out the department’s responsibilities under this section.
145:2 New Subparagraph; Employment; New Hampshire Return to Work Program. Amend RSA 282-A:9, IV by inserting after subparagraph (w) the following new subparagraph:
(x) Participation in the New Hampshire return to work program in the department of employment security which provides a structured, supervised training opportunity to claimants through a designated employer/training partner. Claimants participate on a voluntary basis and continue to receive unemployment compensation during the training period as long as they remain otherwise eligible. The training program duration is a maximum of 6 weeks and a maximum of 24 hours per week.
145:3 New Section; Return to Work Program Participants; Workers’ Compensation Eligibility. Amend RSA 282-A by inserting after section 26 the following new section:
282-A:26-a Return to Work Program Participants; Workers’ Compensation Eligibility.
I. A participant in the department of employment security’s return to work program shall be entitled to certain benefits under RSA 281-A. In the event that it is determined that a return to work program participant has been subject to an injury or occupational disease producing a disability arising out of and in the course of participation in the return to work program, the department of employment security shall not provide compensation pursuant to RSA 281-A:28, 281-A:28-a, 281-A:31, and 281-A:31-a, but the participant shall receive unemployment compensation benefits while otherwise eligible under RSA 282-A, or compensation equivalent to 90 percent of those benefits if the disability causes the participant to become ineligible for benefits under RSA 282-A. When determining the amount of compensation provided pursuant to RSA 281-A:32 for a scheduled permanent impairment award, the amount of compensation shall be calculated by using the minimum wage at the time of injury multiplied by the average number of hours in training per week.
II. For a participant in the return to work program, RSA 281-A:8, I and II shall not apply and the following provisions shall apply:
(a) A participant in the return to work program shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the participant or the participant’s personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:
(1) Against the employer/training partner, or the employer/training partner’s insurance carrier, or an association or group providing self-insurance to a number of employers, or the department and the return to work program; and
(2) Except for intentional torts, against any officer, director, agent, servant, or employee acting on behalf of the entities named in subparagraph (a)(1).
(b) The spouse of a return to work program participant entitled to benefits under this chapter, or any other person who might otherwise be entitled to recover damages on account of the participant’s personal injury or death, shall have no direct action, either at common law or by statute or otherwise, to recover for such damages against any person identified in this paragraph.
III. The department of employment security may provide this benefit by appropriate means including purchasing and serving as the master policyholder for any insurance, by self-insurance, or by administrative services contract.
IV. Except as otherwise provided in this section, all other provisions of RSA 281-A shall apply.
145:4 Effective Date. This act shall take effect upon its passage.
Approved: June 14, 2010
Effective Date: June 14, 2010