HOUSE BILL No. 5371

 

February 8, 2012, Introduced by Reps. Poleski, Lori, Haveman and O'Brien and referred to the Committee on Commerce.

 

     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 2011 PA 266.

 

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 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 state, through its

 

representatives, shall not be is not 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 are not

 

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 are 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 are 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 is determined based

 

on the member's average weekly wage.

 

     (e) On-call members An on-call member 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 his or

 

her 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

 

An on-call member of a fire department shall be is 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 is

 

determined based on the member's average weekly wage. On-call

 

members An on-call member of a volunteer underwater diving team

 

shall be is 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 is 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 this

 

state or a political subdivision of the this state shall be is

 

considered to be an employee of the this 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 this state or the

 

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 is 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 that member of

 

the life support agency is paid or unpaid. An on-call member of a

 

life support agency shall be is 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 is

 

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 that member of the life support agency is paid

 

or unpaid. An on-call member of a life support agency shall be is

 

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 is 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, this state or a

 

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 is 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 is 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 is 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 A

 

member of an emergency rescue team shall be is 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 is 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

 

are 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 is

 

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 providing 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 is not an employee subject to this act if he

 

or she is a member of a religious sect or division that is an

 

adherent of established tenets or teachings by reason of which

 

members are conscientiously opposed to accepting the benefits of

 

any public or private insurance that makes payments in the event of

 

death, disability, old age, or retirement or makes payments toward

 

the cost of, or provides services for, medical bills, including the

 

benefits of any insurance system established by the social security

 

act, 42 USC 301 to 1397mm, and has the practice established for 10

 

or more years, for members of the sect or division to make

 

reasonable provision for their dependent members. An employer shall

 

retain a copy of the employee's internal revenue service form 4029

 

that has been approved by the federal social security

 

administration to assert an exemption under this subdivision.

 

     (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 is not 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 remains in effect until

 

revoked by giving written notice to the director.