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.
23
24 Be It Enacted by the Legislature of the State of Florida:
25
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.