Worker's Compensation and Domestic Servants and Home-Care Providers

Persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant.

If a person's employment is in the trade, business, profession, or occupation of the employer, he or she is an employee.

Persons hired in a private home to give primary-care to an individual such as help in walking, bathing, preparing meals and special diets, supervising use of medications and exercise therapy and other duties commonly associated with the meaning of primary-care giver, may meet the definition of home-care provider.

While a home-care provider may assist in preparation and clean-up of the recipient's meals, such activities are considered incidental to the primary-care duties, rather than domestic servant duties.

No, a person providing personal care to an individual does not perform services as part of the trade, business, occupation, or profession of the recipient nor is arranging for a family member's home-care an occupation or employment.

The recipient would clearly be the employer and the worker would clearly be an employee of the recipient. However, this employment would be considered not to be during trade, business, profession, or occupation of the employer (client). Therefore, worker's compensation insurance would be optional on the part of the employer (client).

If the county social service agency is involved with an employment arrangement and direction, expectation and pays and provides benefits of the home care provider, the county is the employer for workers compensation purposes.

Any claim filed by the home care provider while performing their job is decided on a case-by-case basis.

There are two worker's compensation coverage options to cover a client's home-care provider:

1. The client obtains an individual workers compensation policy to cover the worker or.
2. If the client does not obtain an individual policy, the worker is considered an employee (for the purposes of worker's compensation coverage only) of the fiscal agent and the worker is covered under the fiscal agent's worker's compensation policy.

Note: Under option 2, the worker is considered an employee of the fiscal agent only for the purpose of worker's compensation coverage.

If the employer-employee relationship exists exclusively between the worker (the home-care provider) and the recipient of the service (client), and all the elements of direction, control and payment rested with the client, the client would be the employer and the worker would be an employee of the client.

However, this employment would be considered not to be in the course of trade, business, profession or occupation of the employer/client. Therefore, worker's compensation insurance would be optional on the part of the employer/client.

If there is a dispute about insurance coverage, wages or benefits are ruled on a case-by-case basis based on the facts and circumstances at the time of injury.

If an employer has a worker's compensation policy in this situation, the policy will cover any person working under the employer if he or she is found to be an employee at the time of injury.

An employer, who does not have a worker's compensation insurance policy could receive penalties that are assessed based on multiple factors.

Employers who are not subject to the Act and do not carry worker's compensation insurance may be sued in a civil action for damages by an employee who is injured while at work.

For more information, visit: Worker's Compensation Insurance Requirements in Wisconsin