Legal Memorandum: Insurance for Personal Care Assistants

Issue: Whether a Personal Care Provider Organization (PCPO) would be considered an employer and thus be required to carry workers’ compensation insurance on Personal Care Assistants in Minnesota.

Area of Law: Employee Law, Workers Compensation Insurance
Keywords: Personal care assistants; Workers' compensation insurance
Jurisdiction: Minnesota
Cited Cases: 252 N.W.2d 246; 210 N.W.2d 311; 49 N.W.2d 797; 297 Minn. 514; 189 N.W.2d 710; 259 N.W.2d 592; 32 P.3d 1146; 243 Minn. 416; 51 N.W.2d 273; 55 N.W.2d 696; 291 Minn. 182; 75 N.W.2d 774; 235 Minn. 432; 68 N.W.2d 124; 97 N.W.2d 649
Cited Statutes: Minn. Stat. §176.021, § 176.011, subd. 9
Date: 11/01/2009

The argument is sometimes made that a business that is paying workers to perform services, as well as performing other activities indicative of employment, falls into the category of employer. Minn. Stat. §176.021.  It is also sometimes argued that because PCPOs are not specifically excluded, they are automatically included in the definition of employer.   No provision states that retail stores must provide workers’ compensation.  No provision states that banks must provide workers’ compensation.  No provision states that hospitals must provide workers’ compensation.  But neither does any provision state specifically that “ABC hospitals,” for instance, are employers, giving rise to an inference that “XYZ hospitals” are not.  Nor does the statute state that “XYZ stores” must have workers’ compensation coverage, thereby suggesting that no such similar obligation exists for “ABC stores.”  In other words, where there are clear, distinct categories of personal care assistance entities, as recognized by the Department of Human Services (which has the last word on employment status for workers’ compensation purposes), and only one type of those entities is specifically included in the definition of employer, there is a strong inference that the other is not included.

Moreover, the statutory definition of “employee” does not specifically exclude independent contractors, see Minn. Stat. § 176.011, subd. 9.

It has long been established that when determining whether a relationship is one of employer and employee, such that the Workers’ Compensation Act is applicable, or that of employer and independent contractor, such that the Act does […]