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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to occupational injury benefit plans; 2
amending s. 440.02, F.S.; revising the definition of 3
the term "employee"; defining the term "qualified 4
compensation alternative employer"; amending s. 5
440.03, F.S.; providing an exception to the 6
application of certain provisions of ch. 440, F.S.; 7
amending s. 440.06, F.S.; specifying how an employer 8
may elect to secure the payment of compensation; 9
authorizing an employee of a qualified compensation 10
alternative employer to bring a certain cause of 11
action; specifying that the employee must prove 12
negligence in such action; authorizing the qualified 13
compensation alternative employer to use certain 14
defenses in such action; prohibiting certain 15
employers, in specified suits, from defending the suit 16
on certain grounds; providing that a qualified 17
compensation alternative employer is entitled to an 18
offset to occupational injury benefits paid to and on 19
behalf of employees under certain circumstances; 20
providing construction; creating s. 440.065, F.S.; 21
requiring qualified compensation arrangement employers 22
to adopt a written occupational injury benefit plan; 23
specifying the requirements of such plan; requiring a 24
qualified compensation arrangement employer to grant 25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
eligibility for benefits under certain circumstances; 26
prohibiting a qualified compensation arrangement 27
employer from charging a fee, premium, or other 28
similar cost to the covered employee for the 29
occupational injury benefit plan; authorizing the 30
qualified compensation arrangement employer to select 31
or authorize medical providers who provide treatment 32
to covered employees under such plan; providing that 33
the qualified compensation arrangement employer is not 34
required to cover, and is not liable in a negligence 35
lawsuit for, certain injuries, diseases, or 36
conditions; creating s. 440.066, F.S.; requiring a 37
qualified compensation arrangement employer to 38
demonstrate financial responsibility; authorizing the 39
qualified compensation arrangement employer to self -40
fund or insure the benefits and liabilities under its 41
occupational injury benefit plan; specifying the 42
insurance requirements and coverage limits required 43
for such insurance; specifying requirements related to 44
the security held; creating s. 440.067, F.S.; 45
providing that all benefit payments by a qualified 46
compensation arrangement employer are made pursuant to 47
workers' compensation law; providing that such law is 48
incorporated in the act by reference; creating s. 49
440.068, F.S.; requiring a qualified compensation 50
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
arrangement employer to obtain approval from the 51
insurance carrier for administration of claims; 52
authorizing a qualified compensation arrangement 53
employer to self-administer or use a third party to 54
administer claims, provided that certain requirements 55
are met; amending ss. 440.14 and 440.385, F.S.; 56
conforming cross-references; providing an effective 57
date. 58
59
Be It Enacted by the Legislature of the State of Florida: 60
61
Section 1. Subsections (33) through (41) of section 62
440.02, Florida Statutes, are renumbered as subsections (34) 63
through (42), respectively, a new subsection (33) is added to 64
that section, and paragraph (d) of subsection (18) of that 65
section is amended, to read: 66
440.02 Definitions. —When used in this chapter, unless the 67
context clearly requires otherwise, the following terms shall 68
have the following meanings: 69
(18) 70
(d) "Employee" does not include: 71
1. An independent contractor who is not engaged in the 72
construction industry. 73
a. In order to meet the definition of independent 74
contractor, at least four of the following criteria must be met: 75
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
(I) The independent contractor maintains a separate 76
business with his or her own work facility, truck, equipment, 77
materials, or similar accommodations; 78
(II) The independent contractor holds or has applied for a 79
federal employer identification number, unless the independent 80
contractor is a sole proprietor who is not required to obtain a 81
federal employer identification number under state or federal 82
regulations; 83
(III) The independent contractor receives compensation for 84
services rendered or work performed and such compensation is 85
paid to a business rather than to an individual; 86
(IV) The independent contractor holds one or more bank 87
accounts in the name of the business entity for purposes of 88
paying business expenses or other expenses related to services 89
rendered or work performed for compensation; 90
(V) The independent contractor performs work or is able to 91
perform work for any entity in addition to or besides the 92
employer at his or her own election without the necessity of 93
completing an employment application or process; or 94
(VI) The independent contractor receives compensation for 95
work or services rendered on a competitive -bid basis or 96
completion of a task or a set of tasks as defined by a 97
contractual agreement, unless such contractual agreement 98
expressly states that an employment relationship exists. 99
b. If four of the criteria listed in sub -subparagraph a. 100
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do not exist, an individual may still be presumed to be an 101
independent contractor and not an employee based on full 102
consideration of the nature of the individual situation with 103
regard to satisfying any of the following conditions: 104
(I) The independent contractor performs or agrees to 105
perform specific services or work for a specific amount of money 106
and controls the means of performing the services or wor k. 107
(II) The independent contractor incurs the principal 108
expenses related to the service or work that he or she performs 109
or agrees to perform. 110
(III) The independent contractor is responsible for the 111
satisfactory completion of the work or services that h e or she 112
performs or agrees to perform. 113
(IV) The independent contractor receives compensation for 114
work or services performed for a commission or on a per -job 115
basis and not on any other basis. 116
(V) The independent contractor may realize a profit or 117
suffer a loss in connection with performing work or services. 118
(VI) The independent contractor has continuing or 119
recurring business liabilities or obligations. 120
(VII) The success or failure of the independent 121
contractor's business depends on the relationship of business 122
receipts to expenditures. 123
c. Notwithstanding anything to the contrary in this 124
subparagraph, an individual claiming to be an independent 125
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contractor has the burden of proving that he or she is an 126
independent contractor for purposes of this chap ter. 127
2. A real estate licensee, if that person agrees, in 128
writing, to perform for remuneration solely by way of 129
commission. 130
3. Bands, orchestras, and musical and theatrical 131
performers, including disk jockeys, performing in licensed 132
premises as defined in chapter 562, if a written contract 133
evidencing an independent contractor relationship is entered 134
into before the commencement of such entertainment. 135
4. An owner-operator of a motor vehicle who transports 136
property under a written contract with a motor c arrier which 137
evidences a relationship by which the owner -operator assumes the 138
responsibility of an employer for the performance of the 139
contract, if the owner -operator is required to furnish motor 140
vehicle equipment as identified in the written contract and the 141
principal costs incidental to the performance of the contract, 142
including, but not limited to, fuel and repairs, provided a 143
motor carrier's advance of costs to the owner -operator when a 144
written contract evidences the owner -operator's obligation to 145
reimburse such advance shall be treated as the owner -operator 146
furnishing such cost and the owner -operator is not paid by the 147
hour or on some other time -measured basis. 148
5. A person whose employment is both casual and not in the 149
course of the trade, business, p rofession, or occupation of the 150
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
employer. 151
6. A volunteer, except a volunteer worker for the state or 152
a county, municipality, or other governmental entity. A person 153
who does not receive monetary remuneration for services is 154
presumed to be a volunteer unle ss there is substantial evidence 155
that a valuable consideration was intended by both employer and 156
employee. For purposes of this chapter, the term "volunteer" 157
includes, but is not limited to: 158
a. Persons who serve in private nonprofit agencies and who 159
receive no compensation other than expenses in an amount less 160
than or equivalent to the standard mileage and per diem expenses 161
provided to salaried employees in the same agency or, if such 162
agency does not have salaried employees who receive mileage and 163
per diem, then such volunteers who receive no compensation other 164
than expenses in an amount less than or equivalent to the 165
customary mileage and per diem paid to salaried workers in the 166
community as determined by the department; and 167
b. Volunteers participating in federal programs 168
established under Pub. L. No. 93 -113. 169
7. Unless otherwise prohibited by this chapter, any 170
officer of a corporation who elects to be exempt from this 171
chapter. Such officer is not an employee for any reason under 172
this chapter until the notice of revocation of election filed 173
pursuant to s. 440.05 is effective. 174
8. An officer of a corporation that is engaged in the 175
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construction industry who elects to be exempt from the 176
provisions of this chapter, as otherwise permitted by this 177
chapter. Such officer is not an employee for any reason until 178
the notice of revocation of election filed pursuant to s. 440.05 179
is effective. 180
9. An exercise rider who does not work for a single horse 181
farm or breeder, and who is compensated for riding on a case -by-182
case basis, provided a written contract is entered into before 183
prior to the commencement of such activity which evidences that 184
an employee/employer relationship does not exist. 185
10. A taxicab, limousine, or other passenger vehicle -for-186
hire driver who operat es such said vehicles pursuant to a 187
written agreement with a company which provides any dispatch, 188
marketing, insurance, communications, or other services under 189
which the driver and any fees or charges paid by the driver to 190
the company for such services are not conditioned upon, or 191
expressed as a proportion of, fare revenues. 192
11. A person who performs services as a sports official 193
for an entity sponsoring an interscholastic sports event or for 194
a public entity or private, nonprofit organization that sponsor s 195
an amateur sports event. For purposes of this subparagraph, such 196
a person is an independent contractor. For purposes of this 197
subparagraph, the term "sports official" means any person who is 198
a neutral participant in a sports event, including, but not 199
limited to, umpires, referees, judges, linespersons, 200
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scorekeepers, or timekeepers. This subparagraph does not apply 201
to any person employed by a district school board who serves as 202
a sports official as required by the employing school board or 203
who serves as a sports official as part of his or her 204
responsibilities during normal school hours. 205
12. Medicaid-enrolled clients under chapter 393 who are 206
excluded from the definition of employment under s. 207
443.1216(4)(d) and served by Adult Day Training Services under 208
the Home and Community -Based or the Family and Supported Living 209
Medicaid Waiver program in a sheltered workshop setting licensed 210
by the United States Department of Labor for the purpose of 211
training and earning less than the federal hourly minimum wage. 212
13. Medicaid-enrolled clients under chapter 393 who are 213
excluded from the definition of employment under s. 214
443.1216(4)(d) and served by Adult Day Training Services under 215
the Family and Supported Living Medicaid Waiver program in a 216
sheltered workshop setting licensed by the United States 217
Department of Labor for the purpose of training and earning less 218
than the federal hourly minimum wage. 219
14. A person employed by a qualified compensation 220
alternative employer. 221
(33) "Qualified compensation alternative emplo yer" or 222
"QCARE employer" means any employer who elects coverage for its 223
employees under s. 440.06. 224
Section 2. Section 440.03, Florida Statutes, is amended to 225
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
read: 226
440.03 Application. —Every employer and employee as defined 227
in s. 440.02 is shall be bound by the provisions of this 228
chapter, except for a qualified compensation alternative 229
employer. A QCARE employer is bound by only those provisions of 230
this chapter specifically referenced . 231
Section 3. Section 440.06, Florida Statutes, is amended to 232
read: 233
440.06 Election Failure to secure compensation; effect. — 234
(1) An employer may elect to secure the payment of 235
compensation, as provided in s. 440.10, or elect to be a 236
qualified compensation alternative employer by complying with s. 237
440.065. 238
(2) An employee of a QCARE employer may bring a cause of 239
action against the QCARE employer for negligence in causing an 240
injury; however, there may be no QCARE employer negligence for 241
an ordinary disease of life to which the general public is 242
exposed. In the cause of action, the employee must prove the 243
QCARE employer negligent. The QCARE employer may use any defense 244
available to an alleged tortfeasor under general law. 245
(3) An Every employer who fails to secure the payment of 246
compensation, as provided in s. 440.10 , by failing to meet the 247
requirements of s. 440.38 or who fails to secure the payment of 248
compensation by failing to comply with s. 440.065 may not, in 249
any suit brought against him or her by an employee subject to 250
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
this chapter to recover damages for injury or death, defend such 251
a suit on the grounds that the injury was caused by the 252
negligence of a fellow employee servant, that the employee 253
assumed the risk of his or her employment, or that the injury 254
was due to the comparative negligence of the employee. 255
(4) A QCARE employer is entitled to an offset for the 256
benefits paid to or on behalf of an employee, under an 257
occupational injury benefit plan that meets the requirements of 258
s. 440.065, against any alleged negligence liability of the 259
QCARE employer, its off icers, directors, or agents with respect 260
to an injury involving such employee. Benefit payments made 261
under such occupational injury benefit plan shall be considered 262
made by the QCARE employer and may not be considered payment 263
from a collateral source, as t he term "collateral source" may be 264
defined under any applicable rule, statute, judicial decision, 265
or directive. 266
Section 4. Section 440.065, Florida Statutes, is created 267
to read: 268
440.065 Requirements of a qualified compensation 269
alternative employer. — 270
(1) A QCARE employer shall adopt a written occupational 271
injury benefit plan that provides defined occupational injury 272
benefits for covered employees on a no -fault basis. Such plan 273
may exclude willful or intentional acts to injure oneself or 274
another. Except for the definitions of the terms provided in 275
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subsection (2), the plan must include all the definitions of 276
other terms provided in s. 440.02, but only to the extent that 277
such terms are relevant to the benefits required in this 278
section. 279
(2) The occupational injury benefit plan must define all 280
of the following terms as indicated: 281
(a) "Accident" means an unexpected or unusual event or 282
result that happens suddenly. If a preexisting condition is 283
accelerated or aggravated by an accident arising out of and i n 284
the course of employment, only acceleration or aggravation of 285
the preexisting condition reasonably attributable to the 286
accident is compensable. 287
(b) "Arising out of" means occupational causation. An 288
accidental injury or death arises out of employment if work 289
performed in the course and scope of employment is the major 290
contributing cause of the injury or death. 291
(c) "Occupational disease" means a disease that is due to 292
causes and conditions that are characteristic of and peculiar to 293
a particular trade, o ccupation, process, or employment. The term 294
does not include ordinary diseases of life to which the general 295
public is exposed. 296
(d) "Wages" means the money rate at which the service 297
rendered is recompensed under the contract of hiring in force at 298
the time of the injury and includes only the wages earned and 299
reported for federal income tax purposes on the job where the 300
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
employee is injured and any other concurrent employment where he 301
or she is also subject to occupational injury coverage and 302
benefits, together with the reasonable value of housing 303
furnished to the employee by the QCARE employer which is the 304
permanent year-round residence of the employee, and gratuities 305
to the extent reported to the QCARE employer in writing as 306
taxable income received in the co urse of employment from others 307
than the QCARE employer and QCARE employer contributions for 308
health insurance for the employee or the employee's dependents. 309
However, housing furnished to migrant workers shall be included 310
in wages unless provided after the t ime of injury. In employment 311
in which an employee receives consideration for housing, the 312
reasonable value of such housing compensation shall be the 313
actual cost to the employer or based upon the Fair Market Rent 314
Survey promulgated pursuant to s. 8 of the H ousing and Urban 315
Development Act of 1974, whichever is less. However, if the 316
QCARE employer contributions for housing or health insurance are 317
continued after the time of the injury, the contributions are 318
not "wages" for the purpose of calculating an employ ee's average 319
weekly wages. 320
(3) The occupational injury benefit plan must provide 321
medical expense coverage for at least 156 weeks per covered 322
employee, up to at least $300,000 per covered employee. 323
(4) The occupational injury benefit plan must provide l ost 324
wage compensation, beginning no later than the 4th full day of 325
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
disability, of at least 75 percent of the average weekly wages 326
of the employee, for at least 156 weeks from the date of 327
disability. 328
(5) The occupational injury benefit plan must provide 329
death benefits for a covered employee's death arising out of 330
employment in an amount not less than $150,000, payable in no 331
more than 60 equal monthly installments. The plan must also pay 332
funeral expenses up to at least $10,000. 333
(6) A QCARE employer must provide benefits to an employee 334
otherwise eligible for occupational injury benefits if the 335
employee reports an accident or a known exposure to an 336
occupational disease within 3 days after such accident, 337
exposure, or diagnosis. 338
(7) A QCARE employer may not charge a fee, premium, or 339
other similar expense to the covered employee for his or her 340
coverage under the occupational injury benefit plan. 341
(8) The QCARE employer may select or authorize the medical 342
providers who provide any treatment to a covered emplo yee under 343
the occupational injury benefit plan. 344
(9) The QCARE employer is not required to cover under the 345
occupational injury benefit plan, nor is the QCARE employer 346
liable in a negligence lawsuit for, any injuries, diseases, or 347
conditions arising from a ny of the following: 348
(a) A subsequent injury the employee suffers as a result 349
of an original injury arising out of employment unless the 350
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original injury is the major contributing cause of the 351
subsequent injury. The employee must demonstrate the major 352
contributing cause by medical evidence. 353
(b) Bodily injury to any person subject to any federal 354
workers' compensation law or other federal occupational disease 355
law, including, but not limited to, the Federal Employers' 356
Liability Act, the Longshore and Harbor Workers' Compensation 357
Act, the Defense Base Act, the Jones Act, or the Migrant and 358
Seasonal Agricultural Worker Protection Act. 359
(c) Any obligation imposed by workers' compensation, 360
occupational disease, unemployment compensation, or disability 361
benefits law, or any similar law, except as specifically 362
referenced in this chapter. 363
Section 5. Section 440.066, Florida Statutes, is created 364
to read: 365
440.066 Financial responsibility of a qualified 366
compensation alternative employer. — 367
(1) A QCARE employer m ust demonstrate financial ability to 368
pay benefit and negligence liability claims by complying with 369
this section. 370
(2) A QCARE employer shall insure the benefits and 371
liabilities under its occupational injury benefit plan with any 372
insurance carrier authoriz ed to do business in this state. The 373
insurance must be for a minimum limit of $1 million per 374
occurrence. The insurance must include benefit coverage and 375
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
negligence liability coverage. Insurance coverage obtained by a 376
QCARE employer must be from an admitted or an approved insurer 377
that is rated "A-" or higher by A.M. Best Company and must be 378
obtained from a licensed insurance agent. 379
(3) Any security held for purposes of compliance with this 380
section serves to guarantee the payment of claims under this 381
chapter. 382
(4)(a) A QCARE employer with a net worth of less than $10 383
million which insures or obtains coverage to be reimbursed for 384
payments under the QCARE employer's occupational injury benefit 385
plan or any negligence settlements or awards through an 386
insurance policy that has a self -insured retention of the 387
greater of $50,000 or 1.5 percent of net worth per occurrence is 388
deemed to have fully insured the QCARE employer's compensation 389
obligation. 390
(b) A QCARE employer with a net worth of $10 million or 391
more which insures or obtains coverage to be reimbursed for 392
payments under the QCARE employer's occupational injury benefit 393
plan or any negligence settlements or awards through an 394
insurance policy that has a self -insured retention of the 395
greater of $500,000 or 1.5 p ercent of net worth per occurrence 396
is deemed to have fully insured the QCARE employer's 397
compensation obligation. 398
(c) A QCARE employer identified in paragraph (a) or 399
paragraph (b) is not required to post any security deposit with 400
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
or provide any financial data to the Office of Insurance 401
Regulation. 402
Section 6. Section 440.067, Florida Statutes, is created 403
to read: 404
440.067 Taxation of benefits of a qualified compensation 405
alternative employer. —For purposes of state and federal 406
taxation, all benefit payme nts made by a QCARE employer are 407
deemed amounts received under a workers' compensation law as 408
compensation for personal injury or sickness. 409
Section 7. Section 440.068, Florida Statutes, is created 410
to read: 411
440.068 Benefit plan disputes. —A QCARE employer must 412
obtain approval from the insurance carrier selected in 413
accordance with s. 440.066 for claims administration. Subject to 414
insurance carrier approval, the QCARE employer may self -415
administer or use a third -party claims administrator to 416
administer claims, provided that all claims and appeals for 417
benefits must be adjudicated by the claims administrator in 418
accordance with the applicable fiduciary, enforcement, reporting 419
and disclosure, and claims administration laws and regulations 420
of the Employee Retirem ent Income Security Act of 1974, as 421
amended. 422
Section 8. Subsection (4) of section 440.14, Florida 423
Statutes, is amended to read: 424
440.14 Determination of pay. — 425
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
(4) Upon termination of the employee or upon termination 426
of the payment of fringe benefits of any employee who is 427
collecting indemnity benefits pursuant to s. 440.15(2) or (3), 428
the employer shall within 7 days after of such termination file 429
a corrected 13-week wage statement reflecting the wages paid , as 430
provided in s. 440.02(41), and the fringe benefits that had been 431
paid to the injured employee , as provided in s. 440.02(40) . 432
Section 9. Paragraph (a) of subsection (1) of section 433
440.385, Florida Statutes, is amended to read: 434
440.385 Florida Self -Insurers Guaranty Association, 435
Incorporated.— 436
(1) CREATION OF ASSOCIATION. — 437
(a) There is created a nonprofit corporation to be known 438
as the "Florida Self -Insurers Guaranty Association, 439
Incorporated," hereinafter referred to as "the association." 440
Upon incorporation of the association, all indivi dual self-441
insurers as defined in ss. 440.02(34)(a) ss. 440.02(33)(a) and 442
440.38(1)(b), other than individual self -insurers which are 443
public utilities or governmental entities, shall be members of 444
the association as a condition of their authority to 445
individually self-insure in this state. The association shall 446
perform its functions under a plan of operation as established 447
and approved under subsection (5) and shall exercise its powers 448
and duties through a board of directors as established under 449
subsection (2). The association shall have those powers granted 450
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or permitted corporations not for profit, as provided in chapter 451
617. The activities of the association shall be subject to 452
review by the department. The department shall have oversight 453
responsibility as set forth in this section. The association is 454
specifically authorized to enter into agreements with this state 455
to perform specified services. 456
Section 10. This act shall take effect September 1, 2026. 457