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WORKERS COMPENSATION (City of Washington Missouri)

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WC-134 (01-18) AI
MISSOURI DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
DIVISION OF
WORKERS’ COMPENSATION
AFFIDAVIT OF EXEMPTION FOR WORKERS’ COMPENSATION INSURANCE
PURSUANT TO § 287.061, RSMo
Before me, the undersigned authority, personally appeared
Name of Affiant
who, being duly sworn on this oath states as follows:
1.
My name is
. I am of legal age and sound mind, capable of making this
affidavit, and personally acquainted with the facts herein stated. I understand that by submitting this affidavit to the
city or county
for an occupational or business license as a contractor in the construction industry, I am stating that my
business is exempt from carrying workers’ compensation insurance coverage.
2.
,
Name of Business
a business engaged in construction industry that is not required to purchase workers’ compensation insurance
coverage for the following reason:
(Check One)
I am a sole proprietor and have no “employees” as defined under the law, see page 2.
I am a partner in a partnership with no “employees” as defined under the law, see page 2.
I have filed a Notice of Employer’s Exemption with the Missouri Division of Workers’ Compensation (Division)
for
to be withdrawn from
Name of Corporation
coverage because there are no more than two owners of the corporation who are also the only employees of the
corporation. A copy of the acknowledgement letter from the Division dated
is enclosed.
Date
Further, I have not filed a notice to withdraw this exemption for my corporation with the Division and my corporation
has no other workers’ compensation insurance coverage.
3.
I have read and reviewed the concept of “statutory employment” explained on pages 2
-3. My business operation is not
being carried out by persons who may be regarded as statutory employees.
4.
I understand that providing fraudulent information on
this affidavit is unlawful under §§287.128, 287.061(3),
570.090
, 575.040, 575.050, and/or 575.060,
RSMo, and may be either a misdemeanor or a felony, punishable by
imprisonment and fine, as indicated on page 3.
Affiant
Date
STATE OF MISSOURI
)
)
COUNTY OF
)
Subscribed and sworn to before me this
day of
, 20
My Commission Expires:
Notary Public (SEAL)
WC-134-2 (01-18) AI
Affidavit of Exemption for Workers’ Compensation Insurance
Applicable Statutory Provisions and Guidelines to be followed
T
he Division has developed the “Affidavit of Exemption for Workers’ Compensation Insurance Pursuant to §287.061,
RSMo” that is required to be filed by a contractor in the construction industry when he/she applies for an occupational or
business license in any city or county only if the contractor does not have proof of workers’ compensation insurance
coverage. If a contractor fails to comply with the requirements relating to providing proof of coverage or completing the
“Affidavit of Exemption” form, he/she shall be denied the business license until the contractor obtains a certificate of
insurance. If the contractor submits the “Affidavit of Exemption” form to obtain the business license he/she should
familiarize himself/herself with the following key statutory provisions. Those who are unsure as to whether they may
lawfully submit such affidavit should seek competent legal advice.
Every employer who is subject to the requirements of chapter 287, RSMo must insure its workers’ compensation liability
with an insurance company authorized to insure such liabilities in the state of Missouri by the Missouri Department of
Insurance, Financial Institutions, and Professional Registration or meet the Division’s requirements to be self-insured. If
an employer fails to obtain the insurance coverage he/she may be held liable to an injured employee for all of the benefits
under the Law in either a civil law suit or in an administrative proceeding before the Division.
E
mployee: §287.020, RSMo: The definition of "employee" includes both full- and part-time employees, and includes
every person in the service of an employer under any contract of hire, express or implied, oral or written, or under any
appointment or election, including executive officers of a corporation. It includes minors, whether or not they are
employed in violation of the law, and family members. It may include volunteer workers who do not receive any income
or compensation unless the exception noted below applies.
P
lease Note: As an exception, the workers’ compensation law does not apply to volunteers if:
• The entity is a tax-exempt organization which operates under the standards of section 501(c)(3) or 501(c)(19) of
the federal Internal Revenue Code;
• The volunteers are not paid wages; and
• The volunteers provide services purely on a charitable and voluntary basis.
All three requirements must be met in order for a volunteer worker not to be classified as an employee under §287.020,
RSMo.
E
mployer: §287.030, RSMo, which defines “employer,” includes a very broad category and states that every employer
who has five or more employees must carry workers’ compensation insurance with one exception for construction
industry employers who erect, alter, demolish or repair improvements who must purchase workers’ compensation
insurance if they have one or more employees.
Sole Proprietor and Partner: §287.035, RSMo, provides that natural persons who are sole proprietors or partners are
employers and are not required to purchase workers’ compensation insurance on themselves but they may voluntarily
choose to do so. Further, close relatives by blood or marriage of sole proprietors or partners may be withdrawn from
coverage but, under §287.030, these relatives are still considered to be “countable” employees. Note that these provisions
do not apply if the business is a corporation or a Limited Liability Company [LLC].
C
orporate Exemption (Two Owners/Employees): §287.090.5, RSMo. A corporation may withdraw from the
provisions of this chapter, when there are no more than two owners of the corporation who are also the only employees of
the corporation, by filing with the Division a notice of election to be withdrawn. The election shall take effect and
continue from the date of filing with the Division by the corporation of the notice of withdrawal from liability under this
chapter. Any corporation making such an election may withdraw its election by filing with the Division a notice to
withdraw the election, which shall take effect thirty days after the date of the filing or at such later date as may be
specified in the notice of withdrawal.
WC-134-3 (01-18) AI
"S" Corporations: Effective January 1, 2018, a shareholder in an "S" Corporation (as defined by Section 143.471.1,
RSMo) who owns at least 40% of the outstanding stock in that corporation may individually reject workers' compensation
insurance coverage for himself or herself by giving written notice of such rejection to the corporation and its workers'
compensation insurer. See, Section 287.037.2, RSMo, as amended in 2017. However, there have been no changes in the
law as to which employees are "countable" and which businesses are required to carry workers' compensation insurance
coverage. So, if the "S" Corporation operates in the construction industry (it erects, demolishes, alters or repairs
improvements), there still must be a workers' compensation insurance policy in force on the corporation itself and on any
of its employees who are not eligible to reject individual coverage on themselves - unless the corporation has no more
than two owners who are also the corporation's only employees and it has notified the Division of Workers' Compensation
that is has withdrawn from the provisions of the Missouri Workers' Compensation Law, as allowed by Section 287.090.5
RMSo. Likewise, an "S" Corporation operating in any industry other than construction that has at least five or more
employees still must have a workers' compensation insurance policy in force on the corporation itself and on any of its
employees who are not eligible to reject individual coverage on themselves. See, Sections 287.030.1(3), RSMo.
Statutory Employer: §287.040, RSMo, provides that certain independent contractors may be considered to be
“employees” of the person who hired them for workers’ compensation purposes, under the legal principle known as
“statutory employment.” Missouri Law does not define “independent contractor.” Missouri courts use three factors to
determine when a statutory employment relationship exists: (1) the work is performed pursuant to a contract; (2) the
injury occurs on or about the premises of the statutory employer; and (3) the work is in the usual course of the statutory
employer’s business. An employer cannot avoid its workers’ compensation liability by hiring independent contractors to
perform jobs that would otherwise be performed by its employees. A contract need not be in writing. The Missouri courts
have ruled that the “employer’s premises” can include a location where the employer is carrying on its business
temporarily. As a construction industry employer you may be held responsible to pay workers’ compensation benefits to
an independent contractor or uninsured subcontractor or their employees. The immediate contractor or subcontractor is
liable as an employer of the employees of the subcontractor. The liability of the immediate employer is primary and that
of the others is secondary and any compensation benefits that are paid by those who are secondarily liable may be
recovered from those primarily liable.
P
lease Note: A general contractor can require subcontractors to carry workers’ compensation insurance. Generally, the
Law says that the general contractor is liable for any injuries sustained by uninsured subcontractors or their uninsured
employees (§287.040, RSMo). Because of this, the general contractor’s insurer will charge an additional premium if the
subcontractor cannot provide proof of coverage, even if the subcontractor has no employees. If the general contractor says
he/she will not hire the subcontractor unless he/she has a policy and insures himself/herself, the subcontractor would need
to buy a policy covering their business or himself/herself or work for a general contractor who does not make this a
requirement.
C
riminal Penalties: §287.128, RSMo makes it unlawful for any person to knowingly make or cause to be made any false
or fraudulent material statement or material representation for the purpose of obtaining or denying any benefit. This is
considered a class E felony punishable by fine up to $10,000 or double the value of the fraud whichever is greater. A
subsequent violation is a class D felony.
A
ny person who knowingly misrepresents any fact in order to obtain workers' compensation insurance at less than the
proper rate for that insurance shall be guilty of a class A misdemeanor. A subsequent violation is a class E felony. Any
employer who knowingly fails to insure his liability pursuant to this chapter shall be guilty of a class A misdemeanor and,
in addition, is liable to the state of Missouri for a penalty in an amount up to three times the annual premium the employer
would have paid had such employer been insured or up to $50,000, whichever amount is greater. A subsequent violation
is a class E felony.
F
urther, providing false information with the intent to deceive also can constitute a felony under §§570.090 (Forgery) and
575.040 (Perjury), and a misdemeanor under §§575.050 (False Affidavit) and 575.060 (False Declaration).
Missouri Division of Workers’ Compensation is an equal opportunity employer/program.
Auxiliary aids and services are available upon request to individuals with disabilities.
TDD/TTY: 800-735-2966 Relay Missouri: 711
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