The use of temporary employees by U.S. employers has increased dramatically over the years, according to the U.S. Bureau of Labor Statistics. In January 1990, there were around 1.2 million temporary help workers in the U.S. In July 2018, that figure had nearly tripled, to over 3 million.
While this trend is multifaceted, temporary workers allow flexibility and can help reduce bottom line costs. But what happens if a temporary employee gets injured while on the job? Does he or she qualify for workers’ compensation benefits, or is the employer off the hook?
State law governs temporary employee worker’s comp claims
The answer to those questions depends on state law. Fortunately, under Ohio law, a temporary employee is just as protected against on-the-job injuries as is a permanent employee. This post explores that topic in more detail.
- Before Ohio enacted the Workers’ Compensation Act in the early 1900s, employees injured at work had little real recourse against their employers.
- Ohio’s workers’ compensation system features a bargain between employers and injured employees: The employees receive workers’ compensation benefits regardless of fault, and the employers are immune from tort lawsuits on account of those injuries.
- Temporary workers are just as protected under the Workers’ Compensation Act as permanent employees, but the same is not generally true for independent contractors.
The Bargain at the Heart of Ohio’s Workers’ Compensation System
Most of the time, when a person is injured by the negligence of another, the injured person can file a personal injury lawsuit against the negligent person. Historically (more than 100 years ago), that’s how workplace injuries were handled, too.
But there was a big problem: Employees virtually never won such cases. There were a number of legal hurdles at that time to successfully suing an employer over a workplace injury. For example:
- If an employee could not prove that the employer was at fault in causing his or her injury, then the employer would not be liable for it.
- If an employee was even partially at fault in causing his or her own injury, then he or she would be found contributorily negligent and barred from recovering anything.
- If the employee’s injury was the fault of a coworker, the “fellow-servant doctrine” prevented the injured employee from recovering against his or her employer.
- An employer could always argue that an employee had “assumed the risk” of his or her injury by agreeing to do the work. In that case, the law at the time also would have barred the employee’s recovery.
To address the unfairness inherent in such a system, the Ohio Legislature introduced the state’s workers’ compensation program in 1912. That program represents a type of bargain between employers and employees:
- Workers can receive workers’ compensation benefits regardless of who was at fault in causing a workplace injury.
- Employers who participate in the workers’ compensation program (as all are required to do) are immune from personal injury lawsuits arising out of workplace injuries.
Workers’ Compensation and Temporary Employee Injuries
Here in Ohio, an employer must have Ohio workers’ compensation coverage to insure its employees against a workplace injury. This requirement applies to any business operating in the state that has at least one employee.
The protection provided by workers’ compensation applies regardless of the term for which the employee is hired. That is, workers’ compensation covers employees that may work only for a short period of time, seasonally or part-time – all employees must be covered.
But who is the employer of a temporary worker? That is, with which company should injured temporary workers make a workers’ compensation claim?
It depends. Temporary workers who are hired directly by a company to do work for it should be covered by that company’s workers’ compensation policy. But temporary workers who are hired through a staffing agency may be employees both of the staffing agency and the company at which they actually perform work.
Caution: Temporary Employees vs. Independent Contractors
Keep in mind, however, that this discussion generally applies only to workers who are legally classified as employees, not to independent contractors. Increasingly, companies are turning to independent contractors, freelancers, or workers in the so-called gig economy to fill temporary project needs.
If those workers do not meet the legal definition of an employee, then the company’s workers’ compensation insurance will not cover them.
However, many companies misclassify workers who qualify as employees as independent contractors. Consequently, even if you are working for a business that has treated you as an independent contractor (such as by sending you a 1099 instead of a W-2 at the end of the year), you should consult an experienced Ohio workers’ compensation attorney to determine what options may be available to you.
Help for Temporary Employee Injuries
Temporary workers sometimes believe that they should not report a workplace injury for fear of being replaced. But, keep in mind that Ohio law prohibits employers from retaliating against an employee for filing a workers’ compensation claim. Both the temporary agency and the customer company have joint obligations to ensure workplace safety.
And Ohio ensures that employers are required to provide that protection even to temporary help.
If you have any questions about an Ohio workplace injury or accident, protect your rights and consult an attorney immediately. Plevin & Gallucci has been representing injured workers throughout Ohio for more than 30 years. Contact us today for a no-obligation consultation.