Currently, there are proposals in some states for allowing workers to “opt out” of workers’ comp. Is this a radical departure from the past history of work comp? Hardly. In fact, for the first three decades of work comp the issue was “opting in”, not “opting out”.
When Comp Laws Began, Only Fraction of Work Force Had Mandatory Coverage
When the comp laws began to be passed at the end of the first decade of the 20th century, only a fraction of the work force had mandatory coverage under work comp laws. The office clerical workers, even in a “hazardous” employment (such as construction) did not have mandatory coverage, although in most states they had the right to voluntarily insist on comp coverage.
But even that was not new. In the era of “employers’ liability” laws, many states had voluntary work comp provisions. The employee had the right to be covered under voluntary work comp, but could always opt out if that was the wish. Thus, the employers’ liability policies already had the rudiments of coverage A and coverage B even before work comp laws were passed. And even before employers’ liability laws, voluntary comp policies were being sold to employers (as far back as the 1870’S!)
U.S. Has 60 Year History of Voluntary Workers Comp Coverage
So the US has already gone through an era of voluntary coverage, lasting nearly sixty years, and seen the advantages and disadvantages of that system. In New York, all workers of every business for profit had mandatory comp coverage after the late 1930s, ending the era of “opting in” (or out).
Surprisingly, the voluntary opt in/opt out comp laws remain on the books in certain states. In NY, municipal and county workers do not have mandatory comp coverage and many large unions (police, fire and teachers) have the members covered under disability insurance, preserving the right to sue for negligence.
If anyone would like to see a voluntary work comp law still in effect, see the New York Employers’ Liability Law, Sects. 9-15. However, at present no one seems to be covered by the sections.
We Don’t Have To Speculate What Opt-Out Looks Like
What would it be like for workers to opt out of comp? We don’t have to speculate. As previously mentioned, New York has over 100,000 well paid employees presently in a non-comp disability system. When injuries occur, and lawyers are needed, the usual comp lawyers are not asked to participate. Specialized law firms with union connections handle the claims, mostly through negotiation.
On 9/11, over 400 NY police and fire first responders were killed – and none had work comp coverage.
So, “opting out” has already been in place since the very beginning of comp and employers’ liability – and is still in place, even in states where you would least expect it.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. firstname.lastname@example.org
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