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An association was called before the Virginia Workers Compensation
Commission to show cause as to why it should not be fined for failure
to have workers compensation coverage in place. The deputy commissioner
hearing the case in December 2008, C.E. Mercer, found that the association
was required to have workers compensation coverage in place for two
reasons:
1) The association has executive officers who are not exempt and are
thus considered employees. See § 65.2-101of the Code of Virginia,
below in pertinent part, which only exempts executive officers of
organizations that file under § 501(c)(3) of the Internal Revenue
Code (charities) from being required to maintain this coverage.
2) Individuals who perform maintenance, repair, etc of common areas
may be deemed to be statutory employees, as defined under the Workers
Compensation Act, and therefore may be eligible to make a claim
under the association's workers compensation coverage.
The deputy commissioner did give the association 60 days to either
produce evidence of coverage and it would not then be fined, or
the association could file a legal memorandum in support of its
contention that it was not required to maintain such coverage. The
deputy commissioner went on to say that he did not believe there
was a valid basis for exemption from the requirement to maintain
coverage, but we could submit a brief if we so desired.
The association at issue decided to obtain the coverage and therefore
did not be file a brief or further argue the issue. An Order has
been entered dismissing the case as a result, but the Order did
not go into detail as to the bases for finding the association was
required to have this coverage.
§65.2-101 of the Virginia Code; Definitions. As used in this
title:
"Employee" means:
h. Except as provided in subdivision 2 of this definition, (i)
every executive officer, including president, vice-president, secretary,
treasurer or other officer, elected or appointed in accordance with
the charter and bylaws of a corporation, municipal or otherwise
and (ii) every manager of a limited liability company elected or
appointed in accordance with the articles of organization or operating
agreement of the limited liability company.
"Executive officer" means (i) the president, vice-president,
secretary, treasurer or other officer, elected or appointed in accordance
with the charter and bylaws of a corporation and (ii) the managers
elected or appointed in accordance with the articles of organization
or operating agreement of a limited liability company. However,
such term does not include noncompensated officers of corporations
exempt from taxation pursuant to § 501 (c) (3) of Title 26
of the United States Code (Internal Revenue Code of 1954). |
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