Florida Senate - 2021                                    SB 1458
       By Senator Brandes
       24-01527-21                                           20211458__
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation insurance for
    3         employee leasing companies; amending s. 440.10, F.S.;
    4         specifying when a person is deemed an employee of an
    5         employee leasing company for workers’ compensation
    6         insurance purposes under circumstances relating to the
    7         company’s employee leasing arrangement with a
    8         subcontractor; amending s. 468.525, F.S.; providing
    9         that if an employee leasing company’s client company
   10         is a subcontractor, workers’ compensation insurance
   11         requirements are not satisfied by the employee leasing
   12         arrangement unless certain conditions are met;
   13         amending s. 468.529, F.S.; providing construction;
   14         requiring certain client companies to maintain
   15         separate workers’ compensation insurance coverage
   16         unless certain conditions are met; specifying when a
   17         person is deemed an employee of an employee leasing
   18         company for workers’ compensation insurance proposes
   19         under certain circumstances; reenacting s.
   20         468.532(1)(g), F.S., relating to discipline, to
   21         incorporate the amendment made to s. 468.529, F.S., in
   22         a reference thereto; providing an effective date.
   24  Be It Enacted by the Legislature of the State of Florida:
   26         Section 1. Paragraph (d) of subsection (1) of section
   27  440.10, Florida Statutes, is amended to read:
   28         440.10 Liability for compensation.—
   29         (1)
   30         (d)1. If a contractor becomes liable for the payment of
   31  compensation to the employees of a subcontractor who has failed
   32  to secure such payment in violation of s. 440.38, the contractor
   33  or other third-party payor shall be entitled to recover from the
   34  subcontractor all benefits paid or payable plus interest unless
   35  the contractor and subcontractor have agreed in writing that the
   36  contractor will provide coverage.
   37         2. If a contractor or third-party payor becomes liable for
   38  the payment of compensation to the corporate officer of a
   39  subcontractor who is engaged in the construction industry and
   40  has elected to be exempt from the provisions of this chapter,
   41  but whose election is invalid, the contractor or third-party
   42  payor may recover from the claimant or corporation all benefits
   43  paid or payable plus interest, unless the contractor and the
   44  subcontractor have agreed in writing that the contractor will
   45  provide coverage.
   46         3.If a subcontractor and an employee leasing company are
   47  operating pursuant to an arrangement for employee leasing as
   48  defined in s. 468.520(4) and workers compensation insurance is
   49  provided by the employee leasing company to the leased
   50  employees, a person is deemed an employee of the employee
   51  leasing company for purposes of workers compensation insurance,
   52  unless the subcontractor has secured additional workers’
   53  compensation coverage applicable to the employee, upon the
   54  earliest of the following:
   55         a. The hiring of the person by the subcontractor.
   56         b. The commencement of work by the person for the
   57  subcontractor.
   58         c. The hiring of the person directly by the employee
   59  leasing company.
   60         Section 2. Subsection (5) is added to section 468.525,
   61  Florida Statutes, to read:
   62         468.525 License requirements.—
   63         (5) If the client company is a subcontractor, the
   64  requirements of s. 440.10(1)(a) are not satisfied by the
   65  employee leasing arrangement unless the subcontractor has
   66  secured additional workers’ compensation insurance for nonleased
   67  employees or unless the contractual arrangement provides that a
   68  person is deemed an employee of the employee leasing company for
   69  purposes of workers compensation coverage, upon the earliest of
   70  the following:
   71         (a)The hiring of the person by the client company.
   72         (b)The commencement of work by the person for the client
   73  company.
   74         (c)The hiring of the person directly by the employee
   75  leasing company.
   76         Section 3. Present subsections (4) and (5) of section
   77  468.529, Florida Statutes, are redesignated as subsections (5)
   78  and (6), respectively, a new subsection (4) is added to that
   79  section, and subsection (1) of that section is amended, to read:
   80         468.529 Licensee’s insurance; employment tax; benefit
   81  plans.—
   82         (1) A licensed employee leasing company is the employer of
   83  the leased employees, except that this provision is not intended
   84  to affect the determination of any issue arising under Pub. L.
   85  No. 93-406, the Employee Retirement Income Security Act, as
   86  amended from time to time. An employee leasing company shall be
   87  responsible for timely payment of reemployment assistance taxes
   88  pursuant to chapter 443, and shall be responsible for providing
   89  workers’ compensation coverage pursuant to chapter 440.
   90         (a) However, a no licensed employee leasing company may not
   91  shall sponsor a plan of self-insurance for health benefits,
   92  except as may be permitted by the provisions of the Florida
   93  Insurance Code or, if applicable, by Pub. L. No. 93-406, the
   94  Employee Retirement Income Security Act, as amended from time to
   95  time. For purposes of this section, the term a “plan of self
   96  insurance” excludes shall exclude any arrangement where an
   97  admitted insurance carrier has issued a policy of insurance
   98  primarily responsible for the obligations of the health plan.
   99         (b) This section does not modify the statutory obligation
  100  of a client company to secure workers’ compensation coverage as
  101  required under s. 440.10 for direct employees whom the client
  102  company does not lease pursuant to an employee leasing
  103  arrangement. A client company that is engaged in the
  104  construction industry and that is in an employee leasing
  105  arrangement shall maintain separate workers’ compensation
  106  insurance coverage as required under this section and s. 440.10
  107  unless the employee leasing company and its carrier agree to
  108  provide such coverage directly to the client company, covering
  109  all persons performing work for the client at all times, in full
  110  compliance with s. 440.10.
  111         (4)During the term of an employee leasing arrangement with
  112  a subcontractor, if a subcontractor does not obtain workers
  113  compensation insurance for nonleased employees, a person is
  114  deemed an employee of the employee leasing company for purposes
  115  of workers compensation insurance, upon the earliest of the
  116  following:
  117         (a)The hiring of such person by the client company.
  118         (b)The commencement of work by such person for the client
  119  company.
  120         (c)The hiring of the person directly by the employee
  121  leasing company.
  122         Section 4. For the purpose of incorporating the amendment
  123  made by this act to section 468.529, Florida Statutes, in a
  124  reference thereto, paragraph (g) of subsection (1) of section
  125  468.532, Florida Statutes, is reenacted to read:
  126         468.532 Discipline.—
  127         (1) The following constitute grounds for which disciplinary
  128  action against a licensee may be taken by the board:
  129         (g) Failing to maintain workers’ compensation insurance as
  130  required in s. 468.529.
  131         Section 5. This act shall take effect July 1, 2021.