(A) As used in this rule:
(1) "Responsible
self-insuring employer" or "responsible employer" means the
self-insuring employer or the public school employer that enters into a
construction contract and applies for permission to self-insure the
construction contract. The responsible employer is the entity responsible for
the cost of the construction project and generally will be the owner of the
project. The responsible employer is the payor under the contract.
"Responsible self-insuring employer" or "responsible
employer" may include a self-insuring general contractor or construction
manager whose principal source of business is the execution of construction
projects.
(2) "Public school
employer" means an employer defined in division (R) of section 4123.35 of
the Revised Code that enters into a construction contract exceeding twenty five
million dollars and applies for permission to self-insure the construction
contract, whether or not the employer is a self-insuring employer.
(3) "General contractor" means
a self-insuring employer that has entered into a contract with an owner to
perform more than fifty per cent, by value, of the work on a construction
project.
(4) "Construction manager"
means a self-insuring employer that has entered into a contract with an owner
to provide substantially the same services described in division (A) of section
9.33 of the Revised Code in connection with a construction project. Regardless
of any contrary terms of section 9.33 of the Revised Code, for purposes of this
rule, the term "construction manager" is not limited to public
projects and may apply even if the construction manager also performs
construction work on the project.
(5) "Contracting employer" or
"subcontracting employer" means any employer, whether state fund or
self-insured, that has contracted either directly with a responsible
self-insuring employer or with a contracting or subcontracting employer to
perform construction services on the construction project. The contracting
employer is the payee under the contract, except for where the contracting
employer has subcontracted with another contracting employer.
(B) The purpose of this rule is to
establish standards by which the administrator of workers' compensation
may permit a responsible self-insuring employer to self-insure a construction
project entered into by the responsible self-insuring employer pursuant to
division (O) of section 4123.35 of the Revised Code.
(C) The administrator of workers'
compensation's authority to grant self-insured status for a construction
project is permissive. The bureau may establish criteria for granting
self-insured status to ensure the financial stability and claims continuity of
the workers' compensation program. The burden of proof is on the
responsible self-insuring employer to satisfy the requirements of divisions
(O), (P), and (Q) of section 4123.35 of the Revised Code, including designation
of a safety professional and employment of an ombudsperson for the construction
project, and such other requirements as the administrator of workers'
compensation may establish by this rule or other policy for granting permission
to self-insure a construction project.
(D) A responsible employer filing an
application to self-insure a construction project shall be a self-insuring
employer under the Ohio workers' compensation statutes, except that a
public school employer may be a state fund employer. A public school employer
shall be self-insured for the construction project only and shall maintain
state fund coverage for its employees.
(E) In order for a responsible employer
to be considered for self-insurance under division (O) of section 4123.35 of
the Revised Code, the responsible employer must submit an application within
ninety days prior to the desired effective date including, but not limited to,
the following information:
(1) Dates the
construction project is scheduled to begin and end, including the site(s) of
the construction project;
(2) The estimated cost of
the project;
(3) The contracting and
subcontracting employers whose employees are to be self-insured by the
responsible employer, including estimated payroll and any changes to the list
of contracting and subcontracting employers during the duration of the project
that shall be sent to the bureau within two business days;
(4) The provisions of a
safety program specifically designed for the project;
(5) A statement as to
whether a collective bargaining agreement governing the rights, duties, and
obligations of each of the parties to the agreement with respect to the project
exists between the responsible self-insuring employer and a labor
organization.
(6) The administrator of workers' compensation may
require other information as needed to aid in the decision-making
process.
(F) If the administrator of workers'
compensation approves the application, the administrator of workers'
compensation shall mail to the responsible self-insuring employer a certificate
granting the privilege to self-insure the construction project. Upon approval,
the responsible employer is responsible for the administration and payment for
the life of the claim of all claims under Chapters 4121. and 4123. of the
Revised Code for the employees of any contracting employers and subcontracting
employers covered under the certificate who receive injuries or are killed in
the course of and arising out of employment on the project, or who contract an
occupational disease in the course of employment on the project.
(G) The responsible employer is entitled
to all of the protections provided under Chapters 4121. and 4123. of the
Revised Code with respect to the employees of the contracting and
subcontracting employers covered under the certificate as if the employees were
employees of the responsible employer.
(H) The contracting and subcontracting
employers included under the certificate are entitled to the protections
provided under Chapters 4121. and 4123. of the Revised Code with respect to the
contracting and subcontracting employer's employees who are employed on
the construction project which is the subject of the certificate.
(I) The contracting and subcontracting
employers included under the certificate shall identify in their payroll
records for audit and compliance purposes the employees who are considered the
employees of the responsible employer listed in that certificate for purposes
of Chapters 4121. and 4123. of the Revised Code, and the amount that those
employees earned from employment on the project that is subject to the
certificate. The contracting or subcontracting employer shall exclude the
payroll for its employees under the construction project from its payroll
report, and the administrator of workers' compensation shall not consider
the payroll when determining those contracting or subcontracting
employers' premiums or assessments required under Chapters 4121. and 4123.
of the Revised Code.
(J) The responsible employer shall
include in the amount of paid compensation it reports pursuant to division (L)
of section 4123.35 of the Revised Code, the amount of paid compensation that
the responsible employer paid pursuant to division (O) of section 4123.35 of
the Revised Code.
(K) For a public school employer, the
bureau may grant the privilege of participating as a self-insuring employer for
a construction project under this rule on a one year basis, and shall consider
the project for renewal annually pursuant to rule 4123-19-08 of the
Administrative Code.
(1) Additional
security.
(a) A public school employer shall be required to make
contributions as determined by the administrator of workers compensation
to the self-insuring employers' guaranty fund established under section
4123.351 of the Revised Code. In addition, the employer shall provide
additional security as required by the bureau in the amount or form that may be
specified by the bureau. At a minimum, the additional security shall be one
hundred twenty-five per cent of the expected workers' compensation losses
of the construction project as determined by the bureau. The security shall be
in force on or before the administrator of workers compensation grants
the privilege to self-insure the construction project. In the event the initial
calculation of expected losses is shown to be less than the actual losses,
additional security shall be provided as required by the bureau.
(b) The public school employer shall assign the additional
security required by this rule to the bureau for the benefit of the disabled
employees or the dependents of deceased employees of the public school employer
for the construction project. In addition, the security shall be applied to
disabled workers' relief fund payments to employees of the construction
project and administrative expenses of the bureau in the management of such
claims of employees of the construction project.
(c) Notwithstanding the authority of the bureau to seek
reimbursement from the self insuring employers' guaranty fund, or from
surety, excess loss insurance, and any other sources provided by the employer,
the legal obligation to pay the costs of injuries, occupational diseases, and
deaths incurred under the construction project remains with the public school
employer.
(2) Disabled workers
relief fund.
A public school employer shall be required to
pay the ultimate costs of disabled workers relief fund payments to employees of
the construction project, no matter the status of the construction project at
the time the disabled workers' relief fund payments are made to the
employees of the construction project.
(3) Excess loss
insurance.
A public school employer may purchase excess
loss insurance subject to the provisions concerning excess loss insurance in
rules 4123-19-03 and 4123-19-08 of the Administrative Code. In the event the
excess loss insurance is purchased, all rights to recovery from that insurance
must be assignable to the bureau in the event of bankruptcy of the public
employer school facility employer.
(4) Reducing the costs of
the construction project.
As a condition precedent to the bureau granting
the privilege to self-insure the construction project, the highest elected
official(s) of the public school employer shall certify to the bureau the costs
savings of self-insuring the construction project. The certification shall
include data as required by the bureau, including but not limited to a cost
analysis showing the costs of insuring the project with the Ohio state
insurance fund and the costs of self insuring the project.
(5) Safety
plan.
A safety professional shall be assigned to each
construction project. The safety professional shall be responsible for ensuring
that activities are performed in accordance with the site-specific health and
safety plan ("HASP") and training of site personnel.
A site-specific HASP shall be created prior to
the start of the project and shall, at a minimum, contain the following
elements:
(a) Identify all recognized site hazards associated with each
phase of the project. Particular attention should be given to fall hazards,
trenching operations, and electrical hazards.
(b) Identify key personnel and alternates responsible for site
safety and health and the appointment of a site safety and health officer.
Roles and responsibilities of the key personnel and alternates must be
defined.
(c) Evaluate the risks associated with each operation and
identify the appropriate control measures to be taken to minimize or eliminate
those risks.
(d) Address training requirements for both routine and
non-routine activities.
(e) Include contingencies in the HASP, which may include:
communications, both internal and external, first aid provisions and providers;
identification of nearest medical facility; post emergency phone numbers; and
site control to prevent access by unauthorized personnel.
(f) Include employee involvement, such as involvement in
inspections, incident investigations, and hazard analyses.
(g) Collect documentation of information, such as hazard
inspections, audits of the HASP, injury/illness data, incident investigations,
industrial hygiene surveys, maintenance records, and job hazard
analyses.
(6) Organizational plan
criteria.
The public school employer shall:
(a) Identify a self-insured program administrator to be
knowledgeable in the rules and laws of Ohio self-insurance for workers'
compensation;
(b) Identify its plan to obtain timely payroll information for
all contractors and subcontractors covered, to ensure timely calculation and
distribution of injured worker compensation and benefits; its methodology for
payment of compensation and benefits; and its method of educating each
contractor and its employers as to proper claim reporting and access to medical
care procedures;
(c) Designate where claim files will be located;
(d) Provide to the bureau for approval the employer's plan
for medical management of claims as required by paragraph (L)(1) of rule
4123-19-03 of the Administrative Code;
(e) Plan to ensure accurate accounting of workers covered under
the construction project; and
(f) Identify the bank used for the workers' compensation
account.
(7) Ombudsperson
duties.
The public school employer shall employ an
ombudsperson for the construction project. The ombudsperson shall:
(a) Have experience in workers' compensation or the
construction industry, or both;
(b) Communicate with and provide information to employees who are
injured in the course of, and arising out of, employment on the construction
project;
(c) Investigate the status of a claim upon the request of an
employee; and
(d) Provide information to claimants, third party administrators,
employers, and other persons in protecting their rights under the workers'
compensation laws and rules.