Workers' compensation — Massachusetts

The Massachusetts workers’ compensation system requires employers to provide medical and wage loss benefits to employees who have been injured on the job. Under Massachusetts law, workers’ compensation serves as an exclusive remedy for workers injured while operating in the scope and course of their employment. The law shields employers from civil liability for on-the-job injuries in most situations.

Three state agencies in Massachusetts have key roles in the administration and delivery of services under workers' compensation:

• Department of Industrial Accidents (DIA)
• Division of Insurance (DOI)
• Executive Office of Health and Human Services (EOHHS).

Eligibility for workers’ compensation

Employers covered

Under the Massachusetts Workers’ Compensation Act, most employers are required to provide, secure and pay workers’ compensation for any and all personal injuries sustained by an employee arising out of and in the course of the employment. This requirement includes:

• individuals and personal representatives
• firms, associations, partnerships and corporations
• state, county and municipal corporations
• school corporations
• area education agencies
• church associations
• the legal representatives of a deceased employer
• townships as employers of volunteer firefighters, volunteer emergency rescue technicians and emergency medical care providers
• rehabilitation facilities approved for purchase-of-service contracts or for referrals by the department of human services or the department of education
• eligible post-secondary institutions
• accredited non-public schools
• community colleges
• out of state employers doing business in Massachusetts.

Employees covered

Employees who are injured during the course of employment, or who suffer from work-related mental or emotional disabilities, as well as occupational diseases, are eligible for workers' compensation benefits in Massachusetts. Benefits include:

• medical and hospital services
• medically necessary equipment and prescribed drugs
• weekly compensation for lost income during the period the employee cannot work
• vocational and rehabilitation services.

Despite the act’s broad definition of “employee,” certain types of workers are excluded from coverage under the act. These include:

• seamen engaged in interstate/foreign commerce
• salesmen of real estate or consumer goods who work on a commission, or buy/sell basis other than in a retail establishment, with a written contract stating they are not treated as an employee under federal tax law
• taxi drivers who lease their cabs on a fee basis not related to fares collected and who are not treated as an employee under federal tax law
• person engaged in interstate/foreign commerce who are covered by federal law for compensation for injury or death.

Independent contractors

The distinction between an employee and an independent contractor is determined on a case-by-case inquiry rather than the actual language of the contract or arrangement between parties. Accordingly, employers cannot bypass responsibilities under the workers’ compensation laws by merely designating a worker as an independent contractor.

An employer who wants to treat someone as an independent contractor has to show that work:

• is done without the employer's direction and control
• is performed outside the usual course of the employer's business
• is done by someone who has their own, independent business or trade doing that kind of work.

Individually, none of these factors conclusively determines the status of the relationship. The Office of Legal Counsel is responsible for making the factual determination as to the relationship of the parties.

Coverage exemptions

Any corporate office who owns at least 25% interest in the corporation may exempt themselves from the provisions of the workers' compensation act. Such an exemption does not apply to employees of a corporation who are not listed as corporate officers. All employees must be covered by a valid workers' compensation policy at all times. Officers desiring to be exempt must sigh the Affidavit of Exemption for Certain Corporate Officers or Directors (Form 153), which can be downloaded at:

• https://www.mass.gov/doc/form-153-affidavit-of-exemption-for-certain-corporate-officers/download

Penalties for violations

Criminal and civil penalties can be imposed on employers who violate the mandatory insurance law. Employers who illegally operate without insurance:

• lose the exclusive remedy protection of the workers’ compensation law (without exclusive remedy protection, employers can be sued by employees for any wrong or harm connected to the workplace)
• are liable to the employee for the full measure of damages available under tort law if an injured employee sues the employer in court.

Hiring concerns and workers’ compensation

The Americans with Disabilities Act (ADA) prohibits an employer from inquiring about the existence, nature or severity of an applicant’s disability, including workers’ compensation history. However, a prospective employer may inquire about the applicant’s ability to perform specific job functions under the ADA. Upon hiring, the ADA requires the employer to make a reasonable accommodation to an employee’s known disability if the employee is otherwise able to perform the essential functions of the job.

Investigating workers’ compensation claims from remote workers

Many employers are allowing employees to work remotely indefinitely and/or implementing a hybrid work schedule. When investigating an alleged remote work injury, the employer should evaluate it like any other claim.

Here are some investigative tips:

• Obtain a detailed written statement from the employee that explains what the employee was doing at the time of the injury, and when and where it happened.
• Have the employee take photos of the injury and the injury site when possible.
• Determine if the injury occurred in the course and scope of employment. For example, was the employee on the clock and/or performing job-related duties at the time of the alleged injury or did it occur outside of normal working hours? The alleged injury must also arise out of their employment. In other words, did the activity performed at the time of the injury provide some benefit to the employer?

Requiring employees to create a dedicated work area at home and establish clear working hours and break times will help to reduce potential liability for accidents occurring any time of the day or night. Employers can also install task monitoring software to record the employee’s computer activities, which can help to identify when the computer was being used or when it was idle. These cases can be complicated and are usually very fact-specific. Employers should work with their third-party administrator (TPA) and/or defense counsel to determine if a remote work injury is compensable.

Leave and return to work issues

Clarification of the treating physician’s opinion as to restrictions and impairment should be obtained before permitting an employee who has been absent from the workplace for a work-related injury to return to work. The employer should determine:

• the date upon which the employee is medically authorized to return
• any specific restrictions placed on the employee’s activity
• whether the employee requires any follow-up care that will require the employer to adapt the employee’s schedule.

An employer should strictly adhere to all medical restrictions issued by the treating physician to avoid additional injury to the employee and subsequent additional liability.

The ADA does not require an employer to create a position for an employee injured on the job who can no longer perform the essential functions of his job. Nevertheless, employers may find it a good business practice to create meaningful employment opportunities for injured employees, while they are restricted from performing their normal jobs due to an on-the-job injury. The intersection between workers’ compensation, the ADA and the FMLA has been called the “Bermuda Triangle” as the simultaneous compliance with each law can be quite difficult. It is recommended that employers consult an experienced employment attorney to assist in navigating these issues.

Where to go for more information

Massachusetts Department of Industrial Accidents, Regional Offices

Boston

Fall River

Lawrence

Springfield

Worcester