Can Construction Contractors Get Workers’ Comp in New York?

Can construction workers apply for workers’ comp in New York? The answer to this question is often “Yes!” But also, “it depends.”

Under most circumstances, New York law requires contractors providing construction work to purchase workers’ compensation insurance to cover their workers. This insurance policy pays employees who are injured in New York worksite accidents. But when a contractor has no employees, they may choose whether to buy workers’ compensation insurance or not.

So, the answer to the question “Can construction contractors get workers’ comp?” is complicated. It depends on whether the contractor has employees and, if not, whether the contractor has purchased appropriate workers’ comp insurance.

Here is some information about how workers’ comp insurance works for construction contractors in New York.

Workers’ Comp for Construction Contractors in New York

49 states, including New York, require employers to purchase workers’ compensation insurance. This insurance policy pays benefits to employees who suffer on-the-job injuries.

This guarantees that workers who are injured in a workplace or construction site accident will receive covered medical treatment and partial replacement income until they are able to return to work. These benefits are paid regardless of whether the employer was at fault for the accident or not.

For example, suppose that an employee breaks their hand in a workplace accident on a construction site. The construction worker would be eligible for workers’ comp without needing to prove that their employer caused the accident through negligence. The worker still receives benefits even if their own negligence caused the accident.

But workers’ compensation comes with a trade-off. Injured workers cannot sue their employers for negligence. In the above example, the worker could not sue their employer, even if the employee had proof that the employer failed to maintain its equipment according to the manufacturer’s instructions.

Workers’ Comp for Construction Workers

New York law presumes that construction workers are employees that are entitled to workers’ compensation benefits. New York passed this law to stop builders from mis-classifying construction workers as independent contractors, who are not entitled to workers’ compensation benefits.

For example, a builder might want to classify electricians as independent contractors, even though they work for the builder. The law says that anyone who works under the builder’s control and direction must be classified as an employee. Consequently, the builder must buy a workers’ compensation policy to cover their electricians, along with any other construction workers under their control.

Workers’ Comp for Subcontractors

The law does not require a general contractor or builder to provide workers’ comp coverage for subcontractors. This means that subcontractors must have their own workers’ comp policies to receive benefits for work-related injuries. To be classified as a subcontractor, workers must meet three criteria:

Direction and Control

The subcontractor must be free from the general contractor’s direction and control. This usually means that the general contractor can give the plans or overall goal to the subcontractor, but the subcontractor has the duty and responsibility to carry out the individual steps to complete the job.

Separate Service

The subcontractor must provide a service that the general contractor does not normally provide. The subcontractor usually fills a need that the general contractor cannot meet. For example, a general contractor might hire a plumbing subcontractor to install a septic tank.

Independent Trade

The subcontractor engages in an independent trade when providing the services performed for the general contractor. This usually requires that the subcontractor have the freedom, ability, and licenses to take jobs from other builders.

When all three of these criteria are met, the construction contractor is considered to be a subcontractor that cannot claim benefits under the builder’s or general contractor’s workers’ comp insurance.

Workers’ Comp for Self-Employed Construction Contractors

Suppose that you co-own a roofing business with a business partner. Both of you run the business and work as roofers.

Since you lack employees, New York law does not require you to buy workers’ comp insurance. But it does allow your business to buy it. If you choose to buy workers’ comp insurance, you can claim benefits for your own work injuries.

If you choose not to buy workers’ comp insurance, you cannot claim workers’ comp benefits for on-the-job injuries. Even if your business was hired as part of a larger construction project, you would probably fulfill the three criteria to be classified as a subcontractor and would not be eligible to get workers’ compensation benefits from the builder that hired you.

Exploring Third-Party Liability Claims for Construction Accidents

While workers’ compensation provides essential benefits to injured workers, it is not the only avenue for seeking compensation. In some cases, injured construction workers may have grounds to pursue a third-party liability claim, even if they are eligible for workers’ compensation. This can be particularly important in cases where another party’s negligence contributed to the accident.

What Is a Third-Party Liability Claim?

A third-party liability claim is a legal action taken against a party (other than your employer) whose negligence contributed to your injury. In the context of construction accidents, potential third parties could include:

• Subcontractors: If a subcontractor’s negligence on the job site caused your injury, you might have a claim against them.
• Property Owners: If hazardous conditions on a property contributed to your accident, the property owner could be held liable.
• Equipment Manufacturers: If defective machinery or tools caused your injury, you might have a product liability claim against the manufacturer.

Differences Between Workers’ Compensation and Third-Party Claims

While workers’ compensation is a no-fault system that provides benefits regardless of who caused the accident, third-party liability claims require proving negligence or fault. Here are some key differences:

• Fault: Workers’ compensation does not require proving fault, while third-party claims do.
• Compensation: Workers’ compensation typically covers medical expenses, partial lost wages, and rehabilitation costs. Third-party claims can provide additional compensation for pain and suffering, full wage replacement, and other damages.
• Legal Process: Workers’ compensation claims are handled through an administrative process, while third-party claims are pursued through the civil court system.

Benefits of Pursuing a Third-Party Liability Claim

Pursuing a third-party liability claim can provide several advantages:

• Additional Compensation: Third-party claims can cover damages not available through workers’ compensation, such as pain and suffering and full wage replacement.
• Accountability: Holding negligent third parties accountable can promote safer practices and prevent future accidents.

While workers’ compensation is crucial for covering immediate medical expenses and partial wage loss, exploring available third-party liability claims can provide additional avenues for compensation, especially in severe injury cases.

It’s not a matter of either-or. You may be able to file for both workers’ compensation benefits and compensation through a personal injury lawsuit. Understanding all available options ensures that injured construction workers can seek the full compensation they deserve.

Hiring Workers’ Compensation Attorneys

In some situations, you might not know whether a workers’ compensation policy covers you, and if so, whose insurer must pay for your injuries. Workers’ comp lawyers can sort out who you need to notify about your construction-related injury so that you can receive the medical and income benefits legally owed to you.

Contact us to discuss your workers’ compensation case. When it comes to workers’ comp cases, Catalano wins.

Originally published May 10, 2021. Updated May 21, 2024.