Are You Eligible for Workers’ Compensation?

In 2020, the leading causes of work-related injuries were exposure to harmful substances or environments, overexertion and bodily reaction, and slips, trips, and falls. These causes accounted for 75% of all non-fatal work injuries and illnesses. In 2021, there were 4.26 million medically consulted on-the-job injuries and 5,190 deaths related to preventable work injuries. The US Bureau of Labor Statistics notes that the 2021 fatal injury rate of 3.6 is the highest rate since 2016 and translates to one worker dying every 101 minutes due to his or her job.

State laws can protect you from financial losses and ease your recovery following a work-related accident. Workers’ compensation insurance reimburses employees for the medical fees, occupational rehabilitation costs, and lost wages incurred due to an injury or illness sustained or developed while carrying out their work. The coverage also provides death benefits to dependents of workers who died on the job. It is also good to remember that workers’ comp is a no-fault system, meaning employees receive benefits even if they were personally negligent. 

Workers’ Compensation Eligibility Requirements

Workers’ compensation is mandatory in a vast majority of states, but each state follows its own system for compensating employees who have been injured while doing their duties. The system is set by state legislation and court decisions and is then governed and administered by the state workers’ compensation board. Workers' compensation laws also take into account the risks associated with various industries and the size of the employing organization.

But even if workers’ compensation laws vary from state to state, there are common elements to eligibility requirements for employees of private companies and local government workers, along with different systems for federal employees. These are the basic criteria to be eligible for workers’ compensation benefits:

You must be a bona fide employee.

A worker must be a full-time or part-time employee at the time of his or her injury, but note that even the legal definition of “employee” can vary among states. California, for example, decreed in 2019 that independent contractors like consultants and freelancers and gig economy workers like rideshare drivers and delivery personnel are considered employees. Assembly Bill 5 addresses the practice of employers misclassifying workers as independent contractors to avoid providing benefits like workers’ comp.

General exemptions to being classified as an employee include being the business owner or proprietor, being a partner at the company, and being a volunteer at nonprofits. If you are an undocumented worker, a seasonal worker, a leased or loaned employee, an agricultural or farm laborer, or a domestic worker in a private home, state laws will vary regarding your eligibility for workers’ compensation coverage.

Review your state’s labor and employment laws, focusing on how your company classifies employees and which rights you are entitled to based on your classification. If your employment status is not clearly defined, reviewing your working relationship with the organization or individual that hired you may result in a court dispute. For this, you should look for an employment attorney to assist you in proving your case before a judge.

Your employer must have workers’ compensation insurance.

It is mandatory in most states for employers to carry workers’ compensation, with requirements varying to account for the size of the organization and/or the nature of the industry. The outlier is Texas, where workers’ comp insurance is optional for private companies, but the absence of coverage automatically allows injured employees to sue their employers for negligence. The National Federation of Independent Business has a state-by-state comparison of workers’ compensation guidelines for employers.

There are harsh penalties for companies that do not carry workers’ compensation. In California and New Jersey, non-compliance is a criminal offense and subjects employers to steep fines. Illinois and Pennsylvania classify an employer’s intentional non-compliance with workers’ compensation laws as a felony. Some states, like New York and Virginia, impose fines of up to $50,000 on non-compliant employers.

On top of the penalties for violations, if an employer does not have workers’ compensation insurance, they do not have legal protection from civil lawsuits filed by injured employees. If you discover that your employer is not carrying workers’ comp and it cannot provide you with reimbursement for your losses, immediately seek the counsel of a workers’ compensation attorney to protect your interests. 

Your illness or injury must be work-related.

Workers’ compensation benefits must be awarded if you sustain an injury or acquire an illness during employment. Accidents on the job, like falling debris at construction sites, are covered. As are injuries sustained due to hazardous working conditions, such as the presence of lead and asbestos in work sites and even extreme allergens that trigger severe respiratory illnesses. Repetitive-motion injuries that develop over time — such as carpal tunnel syndrome from keyboard typing, shoulder strain from equipment use, or back injuries from manually carrying heavy items — are also covered.

In very rare cases, in some states, workers’ compensation benefits are awarded to employees who have suffered adverse effects on their mental health because of their job. Though there is a bit of leeway for psychological disorders arising from workplace-related injuries and mental health problems from unusually severe stressors, claims develop into more complex disputes because of the difficulty in quantifying their effects on mental health. 

Most businesses purchase workers' compensation insurance through private insurers or subscribe to funds from state-certified insurers. These organizations review the claims and determine if your injury or illness is work-related. If you feel your claim is unfairly denied based on a misclassification of your injury, it is best to consult a lawyer to ensure you receive the benefits you are entitled to.

You must meet reporting and filing deadlines.

It will always be beneficial to you to immediately report in writing to your employer any injury you have sustained on the job in writing to your employer. States may impose employer-reporting deadlines on top of the time limits for filing a workers’ compensation claim — but sooner is always better when notifying your employer, and always leave a paper trail for your protection. This also applies to injuries you deem mild or moderate to make room for the possibility that your physical condition could get worse over time.

State workers’ compensation boards set their time limits for benefit claims for occupational accidents, generally one to three years after the date of the injury. The injured employee or their employer can file this claim, and confirming who will be responsible for filing is prudent. Some states have longer time limits to account for injuries that require prolonged treatment, such as severe burns or traumatic brain injuries, and any other circumstance where the injured employee cannot adequately represent themselves. 

Long-term occupational diseases like lung cancer and mesothelioma from asbestos exposure or cumulative trauma from repetitive strain injuries also tend to have a longer deadline across states. Commonly, the statute of limitations for these illnesses begins either at the date of the last known exposure to hazardous working conditions or the date of the discovery of the illness. Because the complexity of claims can change according to the severity of an injured employee’s losses, workers’ compensation lawyers can provide case-specific counsel on navigating the claims system.   

Workers’ Compensation Rules for Other Types of Workers

The US Department of Labor sets different requirements regarding workers’ compensation and disability compensation eligibility for federal employees and their dependents. The Office of Workers' Compensation Programs (OWCP) is the umbrella agency that provides federal employees who have been injured on the job or who have developed an illness in the workplace with income replacement benefits, medical treatment, vocational rehabilitation, and other benefits that will assist them in their recovery and, in some cases, help them transition back into the workforce once they are medically cleared to do so. The OWCP is further divided into the following:

• The Federal Employees' Compensation Act (FECA) Claims Administration adjudicates new claims for benefits and manages ongoing cases of the OWCP.

• The Longshore and Harbor Workers' Compensation Program is tasked with mitigating the impact of land-based, maritime employment injuries and deaths on injured employees and surviving families through workers' compensation benefits.

• The Federal Black Lung Program provides compensation to coal miners incapacitated by pneumoconiosis and survivors of workers whose deaths are attributable to employment in coal mines.

• The Energy Employees Occupational Illness Compensation Program administers claims from workers whose injuries are causally related to working in the energy industry, including toxic exposures while employed under the Department of Energy.

When to Talk to a Workers’ Comp Attorney

Workers’ compensation coverage serves the dual purpose of protecting the welfare of employees while shielding employers from most types of civil lawsuits. Thus, if you successfully claim your workers’ compensation benefits, you often effectively waive your right to sue your employer for their liability for your illness or injury. 

There are, of course, special cases that let employees take the extra step of hiring a workers’ compensation attorney for more than just counsel but for the express purpose of bringing an erring employer to court:

• If your employer or your benefits denied your claim were not awarded properly or promptly. Workers’ compensation attorneys can advocate for you in case of unjust denials by filing an appeal on your behalf.

• If the settlement you received from your employer is inadequate. Your workers’ compensation benefits must be able to reasonably cover your lost income, your medical fees, and your rehabilitation and treatment. If the settlement offer from your employer does not meet your needs, it is best to turn to a workers’ comp lawyer to get the damages you are due.

• If your employer retaliates against you for filing a workers’ compensation claim. An attorney can help you uphold your legal rights if you face discrimination in the workplace or even have your employment terminated due to your seeking workers’ comp benefits.

You can also file a lawsuit for third-party negligence. If you were injured because of the negligence of a person or company other than your employer — such as manufacturers of defective products, dog owners at properties you visit because of your job, or proprietors of establishments that double as job sites — then you can ask a personal injury attorney to assist with a claim or lawsuit. Note, however, that you cannot claim both your workers’ compensation benefits and any damages from the personal injury lawsuit against a third party, so consult with an attorney regarding the best course of action for your losses.

Legal Resources for Injured Employees

Federal Employee Program Offices Dashboard

The Office of Workers' Compensation Programs maintains a central hub for federal workers who need to initiate claims under the Federal Employees' Compensation Act. The dashboard allows federal employees to track the progress of their claims, compile documents, and send inquiries regarding pharmacy and hospital bill reimbursements.

ABA Lawyer Referral Directory

The Lawyer Referral Directory of the American Bar Association allows potential clients to search for individual states’ referral services for lawyers in good standing with the organization. Attorneys can be searched for by state, practice area, and specialization.

ABA Free Legal Answers

Free Legal Answers, operated by the American Bar Association, is a website that offers free legal counsel. Users that meet the requirements publish their civil legal queries on their state’s dedicated website. Lawyers provide information and basic legal counsel without any promise of ongoing representation. The virtual legal advice clinic aims to make non-criminal legal advice and information more accessible to individuals who cannot pay for it. There is no charge to use the system or to get the lawyer's counsel or information.

Pro Bono Net

Pro Bono Net is a national nonprofit organization that maintains a network of legal aid organizations and volunteer lawyers, including workers’ compensation and employment law attorneys, for individuals who cannot afford legal fees for civil actions. The nonprofit also operates Law Help, which lists nonprofit legal aid organizations in every state and territory. Law Help provides free legal rights information, court application assistance, and self-advocacy tools such as a portal that lets individuals without legal representation fill out legal paperwork themselves.