34A-2-104. "Employee," "worker," and "operative" defined -- Specific
circumstances -- Exemptions.
(1) As used in this chapter and Chapter 3, Utah Occupational Disease Act, "employee,"
"worker," and "operative" mean:
(a) (i) an elective or appointive officer and any other person:
(A) in the service of:
(I) the state;
(II) a county, city, or town within the state; or
(III) a school district within the state;
(B) serving the state, or any county, city, town, or school district under:
(I) an election;
(II) appointment; or
(III) any contract of hire, express or implied, written or oral; and
(ii) including:
(A) an officer or employee of the state institutions of learning; and
(B) a member of the National Guard while on state active duty; and
(b) a person in the service of any employer, as defined in Section 34A-2-103, who
employs one or more workers or operatives regularly in the same business, or in or about the
same establishment:
(i) under any contract of hire:
(A) express or implied; and
(B) oral or written;
(ii) including aliens and minors, whether legally or illegally working for hire; and
(iii) not including any person whose employment:
(A) is casual; and
(B) not in the usual course of the trade, business, or occupation of the employee's
employer.
(2) (a) Unless a lessee provides coverage as an employer under this chapter and Chapter
3, any lessee in mines or of mining property and each employee and sublessee of the lessee shall
be:
(i) covered for compensation by the lessor under this chapter and Chapter 3;
(ii) subject to this chapter and Chapter 3; and
(iii) entitled to the benefits of this chapter and Chapter 3, to the same extent as if the
lessee, employee, or sublessee were employees of the lessor drawing the wages paid employees
for substantially similar work.
(b) The lessor may deduct from the proceeds of ores mined by the lessees an amount
equal to the insurance premium for that type of work.
(3) (a) A partnership or sole proprietorship may elect to include any partner of the
partnership or owner of the sole proprietorship as an employee of the partnership or sole
proprietorship under this chapter and Chapter 3.
(b) If a partnership or sole proprietorship makes an election under Subsection (3)(a), the
partnership or sole proprietorship shall serve written notice upon its insurance carrier naming the
persons to be covered.
(c) A partner of a partnership or owner of a sole proprietorship may not be considered an
employee of the partner's partnership or the owner's sole proprietorship under this chapter or
Chapter 3 until the notice described in Subsection (3)(b) is given.
(d) For premium rate making, the insurance carrier shall assume the salary or wage of the
partner or sole proprietor electing coverage under Subsection (3)(a) to be 100% of the state's
average weekly wage.
(4) (a) A corporation may elect not to include any director or officer of the corporation as
an employee under this chapter and Chapter 3.
(b) If a corporation makes an election under Subsection (4)(a), the corporation shall serve
written notice upon its insurance carrier naming the persons to be excluded from coverage.
(c) A director or officer of a corporation is considered an employee under this chapter
and Chapter 3 until the notice described in Subsection (4)(b) is given.
(5) As used in this chapter and Chapter 3, "employee," "worker," and "operative" do not
include:
(a) a real estate sales agent or real estate broker, as defined in Section 61-2-2, who
performs services in that capacity for a real estate broker if:
(i) substantially all of the real estate sales agent's or associated broker's income for
services is from real estate commissions; and
(ii) the services of the real estate sales agent or associated broker are performed under a
written contract that:
(A) the real estate agent is an independent contractor; and
(B) the real estate sales agent or associated broker is not to be treated as an employee for
federal income tax purposes;
(b) an offender performing labor under Section 64-13-16 or 64-13-19, except as required
by federal statute or regulation;
(c) an individual who for an insurance producer, as defined in Section 31A-1-301,
solicits, negotiates, places or procures insurance if:
(i) substantially all of the individual's income from those services is from insurance
commissions; and
(ii) the services of the individual are performed under a written contract that states that
the individual:
(A) is an independent contractor;
(B) is not to be treated as an employee for federal income tax purposes; and
(C) can derive income from more than one insurance company;
(d) notwithstanding Subsection 34A-2-103(4), an individual who provides domestic
work for a person if:
(i) the person for whom the domestic work is being provided receives or is eligible to
receive the domestic work under a state or federal program designed to pay the costs of domestic
work to prevent the person from being placed in:
(A) an institution; or
(B) a more restrictive placement than where that person resides at the time the person
receives the domestic work;
(ii) the individual is paid by a person designated by the Secretary of the Treasury in
accordance with Section 3504, Internal Revenue Code, as a fiduciary, agent, or other person that
has the control, receipt, custody, or disposal of, or pays the wages of the individual; and
(iii) the domestic work is performed under a written contract that notifies the individual
that the individual is not an employee under this chapter or Chapter 3; or
(e) subject to Subsections (6) and (7), an individual who:
(i) (A) owns a motor vehicle; or
(B) leases a motor vehicle to a motor carrier;
(ii) personally operates the motor vehicle described in Subsection (5)(e)(i);
(iii) operates the motor vehicle described in Subsection (5)(e)(i) under a written
agreement with the motor carrier that states that the individual operates the motor vehicle as an
independent contractor; and
(iv) provides to the motor carrier at the time the written agreement described in
Subsection (5)(e)(iii) is executed or as soon after the execution as provided by an insurer:
(A) a copy of a workers' compensation coverage waiver issued pursuant to Section
31A-22-1011 by an insurer to the individual; and
(B) proof that the individual is covered by occupational accident related insurance.
(6) An individual described in Subsection (5)(d) or (e) may become an employee under
this chapter and Chapter 3 if the employer of the individual complies with:
(a) this chapter and Chapter 3; and
(b) commission rules.
(7) For purposes of Subsection (5)(e):
(a) "Motor carrier" means a person engaged in the business of transporting freight,
merchandise, or other property by a commercial vehicle on a highway within this state.
(b) "Motor vehicle" means a self-propelled vehicle intended primarily for use and
operation on the highways, including a trailer or semitrailer designed for use with another
motorized vehicle.
(c) "Occupational accident related insurance" means insurance that provides the
following coverage for an injury sustained in the course of working under a written agreement
described in Subsection (5)(e)(iii):
(i) disability benefits;
(ii) death benefits;
(iii) medical expense benefits, which include:
(A) hospital coverage;
(B) surgical coverage;
(C) prescription drug coverage; and
(D) dental coverage.
Amended by Chapter 185, 2009 General Session
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Last revised: Thursday, May 28, 2009