8-40-302. Scope of term "employer".
Statute text
(1) Repealed.
(2) Articles 40 to 47 of this title are not intended to apply to employees of eleemosynary, charitable, fraternal, religious, or social employers who are elected or appointed to serve in an advisory capacity and receive an annual salary or an amount not in excess of seven hundred fifty dollars and are not otherwise subject to the "Workers' Compensation Act of Colorado".
(3) Articles 40 to 47 of this title are not intended to apply to employers of casual farm and ranch labor or employers of persons who do casual maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the place of business, trade, or profession of the employer if such employers have no other employees subject to said articles 40 to 47, if such employments are casual and are not within the course of the trade, business, or profession of said employers, if the amounts expended for wages paid by the employers to casual persons employed to do maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the place of business, trade, or profession of the employer do not exceed the sum of two thousand dollars for any calendar year, and if the amounts expended for wages by the employer of casual farm and ranch labor do not exceed the sum of two thousand dollars for any calendar year.
(4) Articles 40 to 47 of this title are not intended to apply to employers of persons who do domestic work or maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the private home of the employer if such employers have no other employees subject to said articles 40 to 47 and if such employments are not within the course of the trade, business, or profession of said employers. This exemption shall not apply to such employers if the persons who perform the work are regularly employed by such employers on a full-time basis. For purposes of this subsection (4), "full-time" means work performed for forty hours or more a week or on five days or more a week.
(5) (a) Any employer excluded under this section may elect to accept the provisions of articles 40 to 47 of this title by purchasing and keeping in force a policy of workers' compensation insurance covering said employees.
(b) Notwithstanding any other provision of articles 40 to 47 of this title, any working general partner or sole proprietor actively engaged in the business may elect to be included by endorsement as an employee of the insured and shall be entitled to elect coverage regardless of whether such working general partner or sole proprietor employs any other person under any contract of hire.
(6) Articles 40 to 47 of this title are intended to apply to officers of agricultural corporations; but effective July 1, 1977, any such agricultural corporation may elect to reject the provisions of articles 40 to 47 of this title for any or all of said officers.
(7) (a) Any employer, as defined in section 8-40-203, who enters into a bona fide cooperative education or student internship program sponsored by an educational institution for the purpose of providing on-the-job training for students shall be deemed an employer of such students for the purposes of workers' compensation and liability insurance pursuant to articles 40 to 47 of this title.
(b) If the student placed in an on-the-job training program does not receive any pay or remuneration from the employer, the educational institution sponsoring the student in the cooperative education or student internship program shall insure the student through the institution's workers' compensation and liability insurance or enter into negotiations with the employer for the purpose of arriving at a reasonable level of compensation to the employer for the employer's expense of providing workers' compensation and liability insurance while such student is participating in on-the-job training with said employer. This paragraph (b) shall not apply to a student teacher participating in a program authorized pursuant to article 62 of title 22, C.R.S.
(c) As used in this subsection (7), "cooperative education or student internship program" means a program sponsored by an educational institution in which a student is taught through a coordinated combination of specialized in-the-school instruction provided through an educational institution by qualified teachers and on-the-job training provided through a local business, agency, or organization or any governmental agency in cooperation with the educational institution.
History
Source: L. 90: Entire article R&RE, p. 474, 1, effective July 1. L. 91: (1) repealed, p. 1294, 6, effective July 1. L. 93: (5) amended, p. 455, 1, effective April 19.
Annotations
Editor's note: This section is similar to former 8-41-105 as it existed prior to 1990.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Exempt Employers.
A. Casual Labor.
B. Farm and Ranch Labor.
C. Contracts for Hire.
D. Domestic Workers.
Annotator's note. Since 8-40-302 is similar to 8-41-105 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.
Even if employee was a casual laborer, the exemption under subsection (4) (now subsection (3)) does not apply because the employee's duty of maintaining the racetrack and its equipment were within the course of the employer's business of operating a racetrack. Butland v. Indus. Claim Appeals Office, 754 P.2d 422 (Colo. App. 1988).
Exclusion of farm and ranch labor in this section does not constitute a violation of equal protection. Anaya v. Indus. Comm'n, 182 Colo. 244, 512 P.2d 625 (1973).
Farm and ranch labor falls within the field of agriculture which in general refers to any activity incident to the cultivation of land for the growing of crops, the harvesting thereof, and the care and feeding of livestock. It includes tillage, seeding, husbandry, and all things incident to farming in the widest sense of that term. Great W. Mushroom Co. v. Indus. Comm'n, 103 Colo. 39, 82 P.2d 751 (1938); Billings Ditch Co. v. Indus. Comm'n, 127 Colo. 69, 253 P.2d 1058 (1953); Smith v. Indus. Comm'n, 134 Colo. 454, 306 P.2d 254 (1957).
The whole character of the employment must be looked to in order to determine whether one is a farm laborer. Neither the pending task nor the place where it is being performed is the test. Billings Ditch Co. v. Indus. Comm'n, 127 Colo. 69, 253 P.2d 1058 (1953).
Construction of exemption clause. The workmen's compensation law is to be construed liberally and in every reasonable manner to accomplish the evident intent and purpose of the act; but in applying this rule, the court must not forget the exemption clause which frees those who employ farm and ranch labor from the provisions of the act, unless they voluntarily elect to come under it. The court must, therefore, be equally cautious to see to it that this exemption be not so restricted, limited and constricted in the interpretation of its terms and provisions as to destroy its effect. Billings Ditch Co. v. Indus. Comm'n, 127 Colo. 69, 253 P.2d 1058 (1953).
Not modified by 8-48-101. The contracting-out provision of 8-48-101 does not modify the exemption for farm and ranch labor of this section. Hefley v. Morales, 197 Colo. 523, 595 P.2d 233 (1979).
While the employer of farm or ranch labor may elect to accept coverage under the workmen's compensation act by filing a written statement to the effect that he accepts the provisions of the act, the filing of an unsigned printed card by someone other than the employer; and without his knowledge or direction, is not sufficient to charge such employer with liability under the act. Smith v. Indus. Comm'n, 134 Colo. 454, 306 P.2d 254 (1957).
The burden of proof is on a claimant to establish by competent evidence that the employer himself, or some person by him duly authorized, filed a written statement accepting the provisions of the act. Smith v. Indus. Comm'n, 134 Colo. 454, 306 P.2d 254 (1957).
Worker on threshing machine may not be "farm labor". Where a farmer traveled about the country with his machine doing threshing for others, for compensation, it is held under the facts disclosed, that one who was employed by him in such work was not a farm laborer within the meaning of this section, and was entitled to compensation for an accidental injury. Hoshiko v. Indus. Comm'n, 83 Colo. 556, 266 P. 1114 (1928).
Employee sorting potatoes for potato grower engaged in farm labor. Employee, who was injured while sorting potatoes for potato grower in cellars maintained by grower where only his potatoes were sorted and stored, was engaged in farm labor and, thus, not entitled to workmen's compensation. Anaya v. Indus. Comm'n, 182 Colo. 244, 512 P.2d 625 (1973).
Employee held to be engaged in farm labor. Where employee left a hoist job at his own request, and a man was employed to succeed him on that job, and employee anticipated early enlistment in the Army, it was held that this was not a case of conflicting evidence, that the employee was engaged in farm labor, and that he had not been just temporarily transferred from his regular employment to work on the farm, so that he was a farm laborer within the meaning of the statute. Maley v. Martin, 111 Colo. 545, 144 P.2d 558 (1943).
A contract for hire may be formed as long as the fundamental elements of contract formation are present even though not every formality attending commercial contractual arrangements is observed. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
Contract of hire found to exist where claimant was part-time ski patrol worker who agreed to work only in exchange for the benefit of daily ski pass in lieu of salary and who worked under the direction of the employer. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
Subsection (4) is not violative of equal protection. In requiring that employers of domestic workers who work 40 or more hours per week or five or more days per week provide workers' compensation and exempting employers of domestic workers who work fewer than such hours or days, the general assembly had a rational basis for treating employers of casual labor differently than employers who hire regular, full-time employees. Naiden v. Epps, 867 P.2d 215 (Colo. App. 1993).
The Workers' Compensation Act was intended to apply to claimant who was hired to perform domestic services on a full-time basis, when employer compensated dual employer for claimant's services, and dual employer maintained workers' compensation coverage on claimant's behalf. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).
The exceptions under this section and 8-41-402 are not intended to abrogate the borrowed servant doctrine in the case of work performed at a private home, except in the limited situations in which the domestic employment is not on a full-time basis. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).
Domestic work, as used in subsection (4), includes child care. This is consistent with the intent of this section to exempt from the workers' compensation requirements private employers who employ persons to perform domestic work within their homes because such employers cannot pass the cost of workers' compensation coverage to consumers. Connor v. Zelaski, 839 P.2d 501 (Colo. App. 1992).
ARTICLE 41
COVERAGE AND LIABILITY
Annotations
Editor's note: This article was numbered as article 2 of chapter 81, C.R.S. 1963. The substantive provisions of this article were repealed and reenacted in 1990, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1990, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editors' notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Annotations
Cross references: For damages for death by negligence, see part 2 of article 21 of title 13.
Section
PART 1 ABROGATION OF DEFENSE
8-41-101. Assumption of risk - negligence of employee or fellow servant.
8-41-102. Liability of employer complying.
8-41-103. Availability of common-law defenses.
8-41-104. Acceptance as surrender of other remedies.
PART 2 COVERAGE
8-41-201. Not applicable to common carriers.
8-41-202. Rejection of coverage by corporate officers and others.
8-41-203. Negligence of stranger - remedies - subrogation - actions - compromise.
8-41-204. Injury outside of state - benefits in accordance with state law.
8-41-205. Waiver of compensation by employee - approval required - exception.
8-41-206. Disability beginning five years after injury.
8-41-207. Death after two years.
8-41-208. Coverage for job-related exposure to or contraction of hepatitis C.
8-41-209. Coverage for occupational diseases contracted by firefighters.
8-41-210. Coverage for property tax work-off program participants.
8-41-211. Transportation network company drivers - rules.
8-41-212. Exemptions - laws of other state furnish exclusive remedy - definitions.
PART 3 LIABILITY
8-41-301. Conditions of recovery - definitions.
8-41-302. Scope of terms - "accident" - "injury" - "occupational disease".
8-41-303. Loaning employer liable for compensation.
8-41-304. Last employer liable - exception.
PART 4 CONTRACTORS AND LESSEES
8-41-401. Lessor contractor-out deemed employer - liability - recovery.
8-41-402. Repairs to real property - exception for liability of occupant of residential real property.
8-41-403. Exemption of certain lessors of real property.
8-41-404. Construction work - proof of coverage required - violation - penalty - definitions.
PART 5 DEPENDENCY
8-41-501. Persons presumed wholly dependent.
8-41-502. Other dependents - temporary dependency.
8-41-503. Dependency and extent determined - how.
8-41-504. Action by injured employee - dependents not parties in interest.
8-41-505. Minor children.