Coverage – Status – Construction Workers
Oct 24, 2013
- Jack Martone, The American Equity Underwriters, Inc.
This is another discussion with regard to Status under section 2(3) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 902(3)). It’s about construction workers. This includes all of the welders, electricians, roofers, plumbers, carpenters, etc., who build, renovate, and repair buildings and other structures.
I’m not talking about: dock and pier building and repairing, seawall and bulkhead repairing and building, and the variety of maintenance and janitorial workers that work in and around the buildings in maritime areas. Those status discussions are for another day. The status of these workers often involves either a discussion of the meaning of “harbor worker” in section 2(3), or an analysis of the workers’ direct, essential involvement in shipbuilding or cargo handling.
This is about the construction contractors who construct buildings. These are the same workers who build office or industrial buildings nowhere near any navigable waters. We are discussing the maritime status of these workers because for our purposes they happen to be working on a building on a maritime situs.
Please refer back to recent posts for the General Principles of Status. Workers on a maritime situs must be engaged in “maritime employment” to meet status, i.e., work that is essential or integral to traditional maritime activity.
Thus, not all work done on a maritime situs is maritime employment covered by the Longshore Act. But work that is not by its nature maritime, such as in the generic construction trades, can become maritime employment based on the location of the work and the purpose and use of the structures being worked on.
For most of the workers we are discussing there is nothing uniquely maritime in the work that they do. Constructing a building, renovating a structure, repairing a roof, etc. can be done anywhere. When it’s done on a maritime situs, however, we must be alert to the issue of USL&H coverage if there is the possibility that the workers may meet status.
There are two broad factors in the evaluation of status for construction workers: the purpose or function of the building or structure, looking for an essential maritime relationship, and the timing of that relationship.
First, there’s the purpose of the building. Remember, construction work does not become maritime employment merely because it is being done on a maritime situs. The building or facility has to be essential or integral to loading/unloading of vessels or to shipbuilding/ship repair/ship breaking, or in a parallel analysis, the workers may qualify as “harbor workers” as that phrase is (unfortunately not) defined in section 2(3).
Principle: Not only those workers who directly handle cargo or work directly on building or repairing vessels can meet status. Those workers who build, repair, and maintain the buildings and equipment essential to those processes can also meet status.
We’re getting repetitive, but: the duties of the workers do not have to be maritime in nature, but the building they are working on has to have a maritime purpose, essential to loading/unloading or shipbuilding/ship repair.
A warehouse at a waterfront terminal that is used to store cargo while it is in an intermediate stage of being loaded/unloaded, is a maritime structure. A building located at a shipyard where parts for vessels are fabricated is a maritime structure. They are integral or essential to maritime operations.
A construction worker who is building, repairing, or renovating a building of this type is going to meet the status test for Longshore coverage. The worker’s skills are not maritime, but the purpose or function of the building is. Usually status depends on the occupation of the worker (is the job integral or essential to loading/unloading or shipbuilding/repair), but for construction workers on a maritime situs it is not specifically their job duties, but the purpose of the structure that they are working on that determines maritime status.
But that’s not the end of it. There is also a timing element that comes into play. Basically, it seems that the nature of the building as a uniquely and essential maritime structure is determined as of its present use. Future or intended use may not be enough to confer status.
A pair of actual cases illustrates this point.
A pipefitter building a power plant at the Norfolk Naval Shipyard failed to meet Longshore Act status. Although the plant would eventually provide steam and electricity to shipbuilding operations, at the time that the claimant was on the site it was new construction and the building had never performed a maritime function. When the job was finished the claimant would have been off the site and on to another construction project (Weyher/Livsey Constructors Inc. v Prevetire, 27 F.3rd 985 (4th Cir. 1994)).
But two maintenance workers at that same power plant at a later date did meet Longshore Act status. The plant was operating and steam and electricity were going to supply shipyard operations. They were maintaining an operating, essential maritime facility (Kerby v Southeastern Public Service Authority, 31 BRBSD 6 (1997)).
So, I guess that it’s not that complicated after all. Construction workers on a job on a maritime situs must be working on a maritime structure with a present maritime purpose or function integral or essential to cargo handling or shipbuilding/ship repair in order to meet the test for maritime status.
That’s pretty broad strokes, but I think that it qualifies as a Principle.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.