House Bill 178-- An Overview of Recent Statute Changes Affecting WC Coverage
By Kevin Bartsch, Assistant Director Workers Compensation Pool Operations, and Shawn Bubb, Director of MSGIA Insurance Services
On March 23, 2023, Governor Gianforte signed into law House Bill 178, which updates the coverage associated with recreational activity by employees on the premises of their workplace. Specifically, House Bill 178 states that workers’ compensation does not cover injuries that occur when district employees are voluntarily recreating on school property (or as part of a school-sanctioned, off-campus event) when they are not acting in an official, paid capacity as an employee. In brief, if an employee is injured during an activity occurring on that person’s unpaid time, coverage will not apply.
To illustrate a number of ways that this law might likely be applied and/or become a means of determining coverage prior to problems arising, we offer the following instructive scenarios:
1) Staff participating in a student/staff volleyball game (meaning, employees who are not required by virtue of their role or responsibilities to participate in this voluntary activity) on school property after school will not be covered.
2) Staff playing basketball during open gym (again, this refers to employees who are not required by virtue of their role or responsibilities to participate in this activity) will be not covered.
3) Staff jogging, walking, or biking on school grounds during a non-paid break, and/or before or after their regular-paid workday, will not be covered.
4) And, finally, staff or volunteers chaperoning a ski trip who decide to use their downtime (during lunch, for instance, or at any other time when they are off the clock and not being paid) to free ski will not be covered.
Another fairly common situation in which this new interpretation of workers’ compensation law applies concerns staff working out in gym facilities before or after school hours when they are doing so on a voluntary basis and thus unpaid. Per the new law, injuries sustained during activities under these conditions will not be covered.
Under the new law, events, and activities that will assuredly require clear communications, rigorous oversight, and proper documentation pertain predominantly to the types of examples presented in the above list; however, even such as activities as holiday gatherings, school birthday celebrations, and PTA fundraising events can involve instances wherein the law applies. Hence, the common denominator among these events ranging from ski trips to birthday parties concerns the fact that participation is voluntary, that staff involved are, for that event, unpaid, and, in most but not all cases, that the activity occurs on district property. Put another way, all such optional activities undertaken voluntarily on district property and/or on a district-sanctioned excursion that includes downtime and requires professional discretion may no longer be covered by workers’ compensation.
These changes in the law, and the somewhat nuanced situations requiring their application, may likely involve more communication with staff than is common in other scenarios in order to help prevent confusion. So, as spring turns to summer and growing numbers of staff take to the fields and courts and tracks – and prior approving any upcoming off-sight, school-sanctioned recreational events involving staff (such as next year’s ski trips) – please be sure to communicate these updates in order document due diligence and, in this way, help to protect the district. And if you are not requiring members of your staff to participate in any potentially dangerous activities as part of their job (such as chaperoning a trip), it’s best to clearly say so in your communication about the event.
While this law and these clarifications are not in the future likely to result in a significant increase in the number of injuries or claim denials, poor communication between employers and employees concerning the kinds of workers’ compensation coverage has contributed to disputes, confusion, and frustration. So, we ask that you please immediately and clearly communicate your expectations in the context of this new law. Once informed, employees are better able to make decisions about whether and when to participate in social or recreational activities on school grounds or away from school property as part of school-sponsored events.
The MSGIA’s workers’ compensation team is ready to help you navigate this coverage change. Just reach out if you want help, even if it’s just to talk some things through about activities going on at your school.
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