SB-0387, As Passed Senate, October 16, 2013
May 23, 2013, Introduced by Senator SCHUITMAKER and referred to the Committee on Reforms, Restructuring and Reinventing.
A bill to amend 1969 PA 317, entitled
"Worker's disability compensation act of 1969,"
by amending section 161 (MCL 418.161), as amended by 2012 PA 83.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 161. (1) As used in this act, "employee" means:
(a)
A person in the service of the this
state, a county, city,
township, village, or school district, under any appointment, or
contract of hire, express or implied, oral or written. A person
employed by a contractor who has contracted with a county, city,
township,
village, school district, or the this state, through its
representatives, shall not be considered an employee of the state,
county, city, township, village, or school district that made the
contract, if the contractor is subject to this act.
(b) Nationals of foreign countries employed pursuant to
section 102(a)(1) of the mutual educational and cultural exchange
act of 1961, Public Law 87-256, 22 USC 2452, shall not be
considered employees under this act.
(c) Police officers, fire fighters, or employees of the police
or fire departments, or their dependents, in municipalities or
villages of this state providing like benefits, may waive the
provisions of this act and accept like benefits that are provided
by the municipality or village but are not entitled to like
benefits from both the municipality or village and this act.
However, this waiver does not prohibit those employees or their
dependents from being reimbursed under section 315 for the medical
expenses or portion of medical expenses that are not otherwise
provided for by the municipality or village. This act shall not be
construed as limiting, changing, or repealing any of the provisions
of a charter of a municipality or village of this state relating to
benefits, compensation, pensions, or retirement independent of this
act, provided for employees.
(d) On-call members of a fire department of a county, city,
village, or township shall be considered to be employees of the
county, city, village, or township, and entitled to all the
benefits of this act if personally injured in the performance of
duties as on-call members of the fire department whether the on-
call member of the fire department is paid or unpaid. On-call
members of a fire department of a county, city, village, or
township shall be considered to be receiving the state average
weekly wage at the time of injury, as last determined under section
355, from the county, village, city, or township for the purpose of
calculating the weekly rate of compensation provided under this act
except that if the member's average weekly wage was greater than
the state average weekly wage at the time of the injury, the
member's weekly rate of compensation shall be determined based on
the member's average weekly wage.
(e) On-call members of a fire department or an on-call member
of a volunteer underwater diving team that contracts with or
receives reimbursement from 1 or more counties, cities, villages,
or townships is entitled to all the benefits of this act if
personally injured in the performance of their duties as on-call
members of a fire department or as an on-call member of a volunteer
underwater diving team whether the on-call member of the fire
department or the on-call member of the volunteer underwater diving
team is paid or unpaid. On-call members of a fire department shall
be considered to be receiving the state average weekly wage at the
time of injury, as last determined under section 355, from the fire
department for the purpose of calculating the weekly rate of
compensation provided under this act except that if the member's
average weekly wage was greater than the state average weekly wage
at the time of the injury, the member's weekly rate of compensation
shall be determined based on the member's average weekly wage. On-
call members of a volunteer underwater diving team shall be
considered to be receiving the state average weekly wage at the
time of injury, as last determined under section 355, from the fire
department for the purpose of calculating the weekly rate of
compensation provided under this act except that if the member's
average weekly wage was greater than the state average weekly wage
at the time of the injury, the member's weekly rate of compensation
shall be determined based on the member's average weekly wage.
(f) The benefits of this act are available to a safety patrol
officer who is engaged in traffic regulation and management for and
by authority of a county, city, village, or township, whether the
officer is paid or unpaid, in the same manner as benefits are
available to on-call members of a fire department under subdivision
(d), upon the adoption by the legislative body of the county, city,
village, or township of a resolution to that effect. A safety
patrol officer or safety patrol force when used in this act
includes all persons who volunteer and are registered with a school
and assigned to patrol a public thoroughfare used by students of a
school.
(g) A volunteer civil defense worker who is a member of the
civil defense forces as provided by law and is registered on the
permanent roster of the civil defense organization of the state or
a political subdivision of the state shall be considered to be an
employee of the state or the political subdivision on whose
permanent roster the employee is enrolled if engaged in the
performance of duty and shall be considered to be receiving the
state average weekly wage at the time of injury, as last determined
under section 355, from the state or political subdivision for
purposes of calculating the weekly rate of compensation provided
under this act.
(h) A volunteer licensed under section 20950 or 20952 of the
public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who
is an on-call member of a life support agency as defined under
section 20906 of the public health code, 1978 PA 368, MCL
333.20906, shall be considered to be an employee of the county,
city, village, or township and entitled to the benefits of this act
if personally injured in the performance of duties as an on-call
member of a life support agency whether the on-call member of the
life support agency is paid or unpaid. An on-call member of a life
support agency shall be considered to be receiving the state
average weekly wage at the time of injury, as last determined under
section 355, from the county, city, village, or township for
purposes of calculating the weekly rate of compensation provided
under this act except that if the member's average weekly wage was
greater than the state average weekly wage at the time of the
injury, the member's weekly rate of compensation shall be
determined based on the member's average weekly wage.
(i) A volunteer licensed under section 20950 or 20952 of the
public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who
is an on-call member of a life support agency as defined under
section 20906 of the public health code, 1978 PA 368, MCL
333.20906, that contracts with or receives reimbursement from 1 or
more counties, cities, villages, or townships is entitled to all
the benefits of this act if personally injured in the performance
of his or her duties as an on-call member of a life support agency
whether the on-call member of the life support agency is paid or
unpaid. An on-call member of a life support agency shall be
considered to be receiving the state average weekly wage at the
time of injury, as last determined under section 355, from the life
support agency for the purpose of calculating the weekly rate of
compensation provided under this act except that if the member's
average weekly wage was greater than the state average weekly wage
at the time of the injury, the member's weekly rate of compensation
shall be determined based on the member's average weekly wage.
(j) If a member of an organization recognized by 1 or more
counties, cities, villages, or townships within this state as an
emergency rescue team is employed by a state, county, city,
village, or township within this state as a police officer, fire
fighter, emergency medical technician, or ambulance driver and is
injured in the normal scope of duties including training, but
excluding activation, as a member of the emergency rescue team, he
or she shall be considered to be engaged in the performance of his
or her normal duties for the state, county, city, village, or
township. If the member of the emergency rescue team is not
employed by a state, county, city, village, or township within this
state as a police officer, fire fighter, emergency medical
technician, or ambulance driver, and is injured in the normal scope
of duties, including training, as a member of the emergency rescue
team, he or she shall be considered to be an employee of the team.
For the purpose of securing the payment of compensation under this
act, on activation, each member of the team shall be considered to
be covered by a policy obtained by the team unless the employer of
a member of the team agrees in writing to provide coverage for that
member under its policy. Members of an emergency rescue team shall
be considered to be receiving the state average weekly wage at the
time of injury, as last determined under section 355, from the team
for the purpose of calculating the weekly rate of compensation
provided under this act except that if the member's average weekly
wage was greater than the state average weekly wage at the time of
the injury, the member's weekly rate of compensation shall be
determined based on the member's average weekly wage. As used in
this subdivision, "activation" means a request by the emergency
management coordinator appointed pursuant to section 8 or 9 of the
emergency management act, 1976 PA 390, MCL 30.408 and 30.409, made
of and accepted by an emergency rescue team.
(k) A political subdivision of this state is not required to
provide compensation insurance for a peace officer of the political
subdivision with respect to the protection and compensation
provided by 1937 PA 329, MCL 419.101 to 419.104.
(l) Every person in the service of another, under any contract
of hire, express or implied, including aliens; a person regularly
employed on a full-time basis by his or her spouse having specified
hours of employment at a specified rate of pay; working members of
partnerships receiving wages from the partnership irrespective of
profits; a person insured for whom and to the extent premiums are
paid based on wages, earnings, or profits; and minors, who shall be
considered the same as and have the same power to contract as adult
employees. Any minor under 18 years of age whose employment at the
time of injury is shown to be illegal, in the absence of fraudulent
use of permits or certificates of age in which case only single
compensation shall be paid, shall receive compensation double that
provided in this act.
(m) Every person engaged in a federally funded training
program or work experience program that mandates the provision of
appropriate worker's compensation for participants and that is
sponsored
by the this state, a county, city, township, village, or
school district, or an incorporated public board or public
commission
in the this state authorized by law to hold property and
to sue or be sued generally, or any consortium thereof, shall be
considered, for the purposes of this act, to be an employee of the
sponsor and entitled to the benefits of this act. The sponsor is
responsible for the provision of worker's compensation and shall
secure the payment of compensation by a method permitted under
section 611. If a sponsor contracts with a public or private
organization to operate a program, the sponsor may require the
organization to secure the payment of compensation by a method
permitted under section 611.
(n) Every person performing service in the course of the
trade, business, profession, or occupation of an employer at the
time of the injury, if the person in relation to this service does
not maintain a separate business, does not hold himself or herself
out to and render service to the public, and is not an employer
subject to this act. On and after January 1, 2013, services are
employment if the services are performed by an individual whom the
Michigan administrative hearing system determines to be in an
employer-employee relationship using the 20-factor test announced
by the internal revenue service of the United States department of
treasury in revenue ruling 87-41, 1 C.B. 296. An individual for
whom an employer is required to withhold federal income tax is
prima facie considered to perform service in employment under this
act. If a business entity requests the Michigan administrative
hearing system to determine whether 1 or more individuals
performing service for the entity in this state are in covered
employment, the Michigan administrative hearing system shall issue
a determination of coverage of service performed by those
individuals and any other individuals performing similar services
under similar circumstances.
(o) An individual registered with the state of Michigan
verification system described in 42 USC 247d-7b shall be considered
an
employee of the state of Michigan this state when engaged in
the
performance of duties or services as a registrant, or when training
to provide those duties or services, except if another employer
provides coverage for that individual specifically for duties and
services arising from registration with this state. That individual
shall be considered to be receiving the state average weekly wage
at the time of injury or death, as last determined under section
355,
from the state of Michigan this
state for purposes of
calculating the weekly rate of compensation provided under this
act, except that if the individual's average weekly wage was
greater than the state average weekly wage at the time of injury or
death the individual's weekly rate of compensation shall be
determined
based upon the individual's weekly average wage. The
state
of Michigan This state shall exercise all the rights and
obligations of an employer and carrier as provided for under this
act.
(p) A reserve or auxiliary officer shall be considered an
employee of this state when engaged in the performance of duties or
services as a reserve or auxiliary officer, or when training to
provide those duties or services. That individual shall be
considered to be receiving the state average weekly wage at the
time of injury or death, as last determined under section 355, from
this state for purposes of calculating the weekly rate of
compensation provided under this act, except that if the
individual's average weekly wage was greater than the state average
weekly wage at the time of injury or death, the individual's weekly
rate of compensation shall be determined based upon the
individual's weekly average wage. This state shall exercise all the
rights and obligations of an employer and carrier as provided for
under this act. As used in this subdivision, "reserve or auxiliary
officer" means an individual authorized on a voluntary or irregular
basis by a duly authorized police agency of this state or a
political subdivision of this state to act as a law enforcement
officer, who is responsible for the preservation of the peace, the
prevention and detection of crime, and the enforcement of the
general criminal laws of this state.
(2) A policy or contract of worker's compensation insurance,
by endorsement, may exclude coverage as to any 1 or more named
partners or the spouse, child, or parent in the employer's family.
A person excluded pursuant to this subsection is not subject to
this act and shall not be considered an employee for the purposes
of section 115.
(3) An employee who is subject to this act, including an
employee covered pursuant to section 121, who is an employee of a
limited liability company of not more than 10 members and who is
also a manager and member, as defined in section 102 of the
Michigan limited liability company act, 1993 PA 23, MCL 450.4102,
and who owns at least a 10% interest in that limited liability
company, with the consent of the limited liability company as
approved by a majority vote of the members, or if the limited
liability company has more than 1 manager, all of the managers who
are also members, except as otherwise provided in an operating
agreement, may elect to be individually excluded from this act by
giving a notice of the election in writing to the carrier with the
consent of the limited liability company endorsed on the notice.
The exclusion remains in effect until revoked by the employee by
giving notice in writing to the carrier. While the exclusion is in
effect, section 141 does not apply to any action brought by the
employee against the limited liability company.
(4) An employee who is subject to this act, including an
employee covered pursuant to section 121, who is an employee of a
corporation that has not more than 10 stockholders and who is also
an officer and stockholder who owns at least 10% of the stock of
that corporation, with the consent of the corporation as approved
by its board of directors, may elect to be individually excluded
from this act by giving a notice of the election in writing to the
carrier with the consent of the corporation endorsed on the notice.
The exclusion remains in effect until revoked by the employee by
giving a notice in writing to the carrier. While the exclusion is
in effect, section 141 does not apply to any action brought by the
employee against the corporation.
(5) If the persons to be excluded from coverage under this act
pursuant to subsections (2) to (4) comprise all of the employees of
the employer, those persons may elect to be excluded from being
considered employees under this act by submitting written notice of
that election to the director upon a form prescribed by the
director. The exclusion shall remain in effect until revoked by
giving written notice to the director.