Ohio § 4123.01

§ 4123.01.

As used in this chapter: (A)(1) “ Employee ” means: (a) Every person in the service of the state, or of any county, municipal corporation,

township, or school district therein, including regular members of lawfully constituted

police and fire departments of municipal corporations and townships, whether paid

or volunteer, and wherever serving within the state or on temporary assignment outside

thereof, and executive officers of boards of education, under any appointment or contract

of hire, express or implied, oral or written, including any elected official of the

state, or of any county, municipal corporation, or township, or members of boards

of education. As used in division (A)(1)(a) of this section, the term “ employee ” includes the following persons when responding to an inherently dangerous situation

that calls for an immediate response on the part of the person, regardless of whether

the person is within the limits of the jurisdiction of the person's regular employment

or voluntary service when responding, on the condition that the person responds to

the situation as the person otherwise would if the person were on duty in the person's

jurisdiction: (i) Off-duty peace officers.  As used in division (A)(1)(a)(i) of this section, “peace officer” has the same meaning

as in section 2935.01 of the Revised Code . (ii) Off-duty firefighters, whether paid or volunteer, of a lawfully constituted fire

department. (iii) Off-duty first responders, emergency medical technicians-basic, emergency medical

technicians-intermediate, or emergency medical technicians-paramedic, whether paid

or volunteer, of an ambulance service organization or emergency medical service organization

pursuant to Chapter 4765. of the Revised Code. (b) Every person in the service of any person, firm, or private corporation, including

any public service corporation, that (i) employs one or more persons regularly in

the same business or in or about the same establishment under any contract of hire,

express or implied, oral or written, including aliens and minors, household workers

who earn one hundred sixty dollars or more in cash in any calendar quarter from a

single household and casual workers who earn one hundred sixty dollars or more in

cash in any calendar quarter from a single employer, or (ii) is bound by any such

contract of hire or by any other written contract, to pay into the state insurance

fund the premiums provided by this chapter. (c) Every person who performs labor or provides services pursuant to a construction contract,

as defined in section 4123.79 of the Revised Code , if at least ten of the following criteria apply: (i) The person is required to comply with instructions from the other contracting party

regarding the manner or method of performing services; (ii) The person is required by the other contracting party to have particular training; (iii) The person's services are integrated into the regular functioning of the other contracting

party; (iv) The person is required to perform the work personally; (v) The person is hired, supervised, or paid by the other contracting party; (vi) A continuing relationship exists between the person and the other contracting party

that contemplates continuing or recurring work even if the work is not full time; (vii) The person's hours of work are established by the other contracting party; (viii) The person is required to devote full time to the business of the other contracting

party; (ix) The person is required to perform the work on the premises of the other contracting

party; (x) The person is required to follow the order of work set by the other contracting party; (xi) The person is required to make oral or written reports of progress to the other contracting

party; (xii) The person is paid for services on a regular basis such as hourly, weekly, or monthly; (xiii) The person's expenses are paid for by the other contracting party; (xiv) The person's tools and materials are furnished by the other contracting party; (xv) The person is provided with the facilities used to perform services; (xvi) The person does not realize a profit or suffer a loss as a result of the services

provided; (xvii) The person is not performing services for a number of employers at the same time; (xviii) The person does not make the same services available to the general public; (xix) The other contracting party has a right to discharge the person; (xx) The person has the right to end the relationship with the other contracting party

without incurring liability pursuant to an employment contract or agreement. Every person in the service of any independent contractor or subcontractor who has

failed to pay into the state insurance fund the amount of premium determined and fixed

by the administrator of workers' compensation for the person's employment or occupation

or who is a self-insuring employer and who has failed to pay compensation and benefits

directly to the employer's injured and to the dependents of the employer's killed

employees as required by section 4123.35 of the Revised Code , shall be considered as the employee of the person who has entered into a contract,

whether written or verbal, with such independent contractor unless such employees

or their legal representatives or beneficiaries elect, after injury or death, to regard

such independent contractor as the employer. (d) Every person who operates a vehicle or vessel in the performance of services for

or on behalf of a motor carrier transporting property, unless all of the following

factors apply to the person: (i) The person owns the vehicle or vessel that is used in performing the services for

or on behalf of the carrier, or the person leases the vehicle or vessel under a bona

fide lease agreement that is not a temporary replacement lease agreement.  For purposes of this division, a bona fide lease agreement does not include an agreement

between the person and the motor carrier transporting property for which, or on whose

behalf, the person provides services. (ii) The person is responsible for supplying the necessary personal services to operate

the vehicle or vessel used to provide the service. (iii) The compensation paid to the person is based on factors related to work performed,

including on a mileage-based rate or a percentage of any schedule of rates, and not

solely on the basis of the hours or time expended. (iv) The person substantially controls the means and manner of performing the services,

in conformance with regulatory requirements and specifications of the shipper. (v) The person enters into a written contract with the carrier for whom the person is

performing the services that describes the relationship between the person and the

carrier to be that of an independent contractor and not that of an employee. (vi) The person is responsible for substantially all of the principal operating costs

of the vehicle or vessel and equipment used to provide the services, including maintenance,

fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except

that the person may be paid by the carrier the carrier's fuel surcharge and incidental

costs, including tolls, permits, and lumper fees. (vii) The person is responsible for any economic loss or economic gain from the arrangement

with the carrier. (2) “Employee” does not mean any of the following: (a) A duly ordained, commissioned, or licensed minister or assistant or associate minister

of a church in the exercise of ministry; (b) Any officer of a family farm corporation; (c) An individual incorporated as a corporation; (d) An officer of a nonprofit corporation, as defined in section 1702.01 of the Revised Code , who volunteers the person's services as an officer; (e) An individual who otherwise is an employee of an employer but who signs the waiver

and affidavit specified in section 4123.15 of the Revised Code on the condition that the administrator has granted a waiver and exception to the

individual's employer under section 4123.15 of the Revised Code ; (f)(i) A qualifying employee described in division (A)(14)(a) of section 5703.94 of the Revised Code when the qualifying employee is performing disaster work in this state during a disaster

response period pursuant to a qualifying solicitation received by the employee's employer; (ii) A qualifying employee described in division (A)(14)(b) of section 5703.94 of the Revised Code when the qualifying employee is performing disaster work in this state during a disaster

response period on critical infrastructure owned or used by the employee's employer; (iii) As used in division (A)(2)(f) of this section, “critical infrastructure,” “disaster

response period,” “disaster work,” and “qualifying employee” have the same meanings

as in section 5703.94 of the Revised Code . Any employer may elect to include as an “ employee ” within this chapter, any person excluded from the definition of “employee” pursuant

to division (A)(1)(d) or (A)(2)(a), (b), (c), or (e) of this section in accordance

with rules adopted by the administrator, with the advice and consent of the bureau

of workers' compensation board of directors.  If an employer is a partnership, sole proprietorship, individual incorporated as

a corporation, or family farm corporation, such employer may elect to include as an

“employee” within this chapter, any member of such partnership, the owner of the sole

proprietorship, the individual incorporated as a corporation, or the officers of the

family farm corporation.  Nothing in this section shall prohibit a partner, sole proprietor, or any person

excluded from the definition of “employee” pursuant to division (A)(2)(a), (b), (c),

or (e) of this section from electing to be included as an “employee” under this chapter

in accordance with rules adopted by the administrator, with the advice and consent

of the board. In the event of an election, the employer or person electing coverage shall serve

upon the bureau of workers' compensation written notice naming the person to be covered

and include the person's remuneration for premium purposes in all future payroll reports.  No partner, sole proprietor, or person excluded from the definition of “employee”

pursuant to division (A)(1)(d) or (A)(2)(a), (b), (c), or (e) of this section, shall

receive benefits or compensation under this chapter until the bureau receives written

notice of the election permitted by this section. For informational purposes only, the bureau shall prescribe such language as it considers

appropriate, on such of its forms as it considers appropriate, to advise employers

of their right to elect to include as an “employee” within this chapter a sole proprietor,

any member of a partnership, or a person excluded from the definition of “employee”

under division (A)(1)(d) or (A)(2)(a), (b), (c), or (e) of this section, that they

should check any health and disability insurance policy, or other form of health and

disability plan or contract, presently covering them, or the purchase of which they

may be considering, to determine whether such policy, plan, or contract excludes benefits

for illness or injury that they might have elected to have covered by workers' compensation. (B)(1) “ Employer ” means: (a) The state, including state hospitals, each county, municipal corporation, township,

school district, and hospital owned by a political subdivision or subdivisions other

than the state; (b) Every person, firm, professional employer organization, alternate employer organization,

and private corporation, including any public service corporation, that (i) has in

service one or more employees or shared employees regularly in the same business or

in or about the same establishment under any contract of hire, express or implied,

oral or written, or (ii) is bound by any such contract of hire or by any other written

contract, to pay into the insurance fund the premiums provided by this chapter. All such employers are subject to this chapter.  Any member of a firm or association, who regularly performs manual labor in or about

a mine, factory, or other establishment, including a household establishment, shall

be considered an employee in determining whether such person, firm, or private corporation,

or public service corporation, has in its service, one or more employees and the employer

shall report the income derived from such labor to the bureau as part of the payroll

of such employer, and such member shall thereupon be entitled to all the benefits

of an employee. (2) “Employer” does not include a franchisor with respect to the franchisor's relationship

with a franchisee or an employee of a franchisee, unless the franchisor agrees to

assume that role in writing or a court of competent jurisdiction determines that the

franchisor exercises a type or degree of control over the franchisee or the franchisee's

employees that is not customarily exercised by a franchisor for the purpose of protecting

the franchisor's trademark, brand, or both.  For purposes of this division, “franchisor” and “franchisee” have the same meanings

as in 16 C.F.R. 436.1 . (C) “ Injury ” includes any injury, whether caused by external accidental means or accidental in

character and result, received in the course of, and arising out of, the injured employee's

employment.  “Injury” does not include: (1) Psychiatric conditions except where the claimant's psychiatric conditions have arisen

from an injury or occupational disease sustained by that claimant or where the claimant's

psychiatric conditions have arisen from sexual conduct in which the claimant was forced

by threat of physical harm to engage or participate; (2) Injury or disability caused primarily by the natural deterioration of tissue, an

organ, or part of the body; (3) Injury or disability incurred in voluntary participation in an employer-sponsored

recreation or fitness activity if the employee signs a waiver of the employee's right

to compensation or benefits under this chapter prior to engaging in the recreation

or fitness activity; (4) Injury or disability sustained by an employee who performs the employee's duties

in a work area that is located within the employee's home and that is separate and

distinct from the location of the employer, unless all of the following apply: (a) The employee's injury or disability arises out of the employee's employment. (b) The employee's injury or disability was caused by a special hazard of the employee's

employment activity. (c) The employee's injury or disability is sustained in the course of an activity undertaken

by the employee for the exclusive benefit of the employer. (5) A condition that pre-existed an injury unless that pre-existing condition is substantially

aggravated by the injury.  Such a substantial aggravation must be documented by objective diagnostic findings,

objective clinical findings, or objective test results.  Subjective complaints may be evidence of such a substantial aggravation.  However, subjective complaints without objective diagnostic findings, objective

clinical findings, or objective test results are insufficient to substantiate a substantial

aggravation. (D) “ Child ” includes a posthumous child and a child legally adopted prior to the injury. (E) “ Family farm corporation ” means a corporation founded for the purpose of farming agricultural land in which

the majority of the voting stock is held by and the majority of the stockholders are

persons or the spouse of persons related to each other within the fourth degree of

kinship, according to the rules of the civil law, and at least one of the related

persons is residing on or actively operating the farm, and none of whose stockholders

are a corporation.  A family farm corporation does not cease to qualify under this division where, by

reason of any devise, bequest, or the operation of the laws of descent or distribution,

the ownership of shares of voting stock is transferred to another person, as long

as that person is within the degree of kinship stipulated in this division. (F) “ Occupational disease ” means a disease contracted in the course of employment, which by its causes and

the characteristics of its manifestation or the condition of the employment results

in a hazard which distinguishes the employment in character from employment generally,

and the employment creates a risk of contracting the disease in greater degree and

in a different manner from the public in general. (G) “ Self-insuring employer ” means an employer who is granted the privilege of paying compensation and benefits

directly under section 4123.35 of the Revised Code , including a board of county commissioners for the sole purpose of constructing a

sports facility as defined in section 307.696 of the Revised Code , provided that the electors of the county in which the sports facility is to be built

have approved construction of a sports facility by ballot election no later than November

6, 1997. (H) “ Private employer ” means an employer as defined in division (B)(1)(b) of this section. (I) “Professional employer organization” has the same meaning as in section 4125.01 of the Revised Code . (J) “ Public employer ” means an employer as defined in division (B)(1)(a) of this section. (K) “ Sexual conduct ” means vaginal intercourse between a male and female;  anal intercourse, fellatio,

and cunnilingus between persons regardless of gender;  and, without privilege to do

so, the insertion, however slight, of any part of the body or any instrument, apparatus,

or other object into the vaginal or anal cavity of another.  Penetration, however slight, is sufficient to complete vaginal or anal intercourse. (L) “ Other-states' insurer ” means an insurance company that is authorized to provide workers' compensation insurance

coverage in any of the states that permit employers to obtain insurance for workers'

compensation claims through insurance companies. (M) “ Other-states' coverage ” means both of the following: (1) Insurance coverage secured by an eligible employer for workers' compensation claims

of employees who are in employment relationships localized in a state other than this

state or those employees' dependents; (2) Insurance coverage secured by an eligible employer for workers' compensation claims

that arise in a state other than this state where an employer elects to obtain coverage

through either the administrator or an other-states' insurer. (N) “ Limited other-states coverage ” means insurance coverage provided by the administrator to an eligible employer for

workers' compensation claims of employees who are in an employment relationship localized

in this state but are temporarily working in a state other than this state, or those

employees' dependents. (O) “Motor carrier” has the same meaning as in section 4923.01 of the Revised Code . (P) “Alternate employer organization” has the same meaning as in section 4133.01 of the Revised Code .