1. a. The earnings of the injured employee in the employment in which he wasworking at the time of the injury during the period of 52 weeks immediatelypreceding the date of the injury, divided by 52; but if the injured employeelost more than seven consecutive calendar days during such period, althoughnot in the same week, then the earnings for the remainder of the 52 weeksshall be divided by the number of weeks remaining after the time so lost hasbeen deducted. When the employment prior to the injury extended over a periodof less than 52 weeks, the method of dividing the earnings during that periodby the number of weeks and parts thereof during which the employee earnedwages shall be followed, provided that results fair and just to both partieswill be thereby obtained. When, by reason of a shortness of time during whichthe employee has been in the employment of his employer or the casual natureor terms of his employment, it is impractical to compute the average weeklywages as above defined, regard shall be had to the average weekly amountwhich during the 52 weeks previous to the injury was being earned by a personof the same grade and character employed in the same class of employment inthe same locality or community.
b. When for exceptional reasons the foregoing would be unfair either to theemployer or employee, such other method of computing average weekly wages maybe resorted to as will most nearly approximate the amount which the injuredemployee would be earning were it not for the injury.
2. Whenever allowances of any character made to an employee in lieu of wagesare a specified part of the wage contract, they shall be deemed a part of hisearnings. For the purpose of this title, the average weekly wage of themembers of the Virginia National Guard, the Virginia Naval Militia and theVirginia State Defense Force, registered members on duty or in training ofthe United States Civil Defense Corps of this Commonwealth, volunteerfirefighters engaged in firefighting activities under the supervision andcontrol of the Department of Forestry, and forest wardens shall be deemed tobe such amount as will entitle them to the maximum compensation payable underthis title; however, any award entered under the provisions of this title onbehalf of members of the National Guard, the Virginia Naval Militia or theirdependents, or registered members on duty or in training of the United StatesCivil Defense Corps of this Commonwealth or their dependents, shall besubject to credit for benefits paid them under existing or future federal lawon account of injury or occupational disease covered by the provisions ofthis title.
3. Whenever volunteer firefighters, volunteer lifesaving or volunteer rescuesquad members, volunteer law-enforcement chaplains, auxiliary or reservepolice, auxiliary or reserve deputy sheriffs, volunteer emergency medicaltechnicians, members of volunteer search and rescue organizations, volunteermembers of community emergency response teams, and volunteer members ofmedical reserve corps are deemed employees under this title, their averageweekly wage shall be deemed sufficient to produce the minimum compensationprovided by this title for injured workers or their dependents. For thepurposes of workers' compensation insurance premium calculations, the monthlypayroll for each volunteer firefighter or volunteer lifesaving or volunteerrescue squad member shall be deemed to be $300.
4. The average weekly wage of persons, other than those covered insubdivision 3 of this definition, who respond to a hazardous materialsincident at the request of the Department of Emergency Management shall bebased upon the earnings of such persons from their primary employers.
"Award" means the grant or denial of benefits or other relief under thistitle or any rule adopted pursuant thereto.
"Change in condition" means a change in physical condition of the employeeas well as any change in the conditions under which compensation was awarded,suspended, or terminated which would affect the right to, amount of, orduration of compensation.
"Client company" means any person that enters into an agreement forprofessional employer services with a professional employer organization.
"Coemployee" means an employee performing services pursuant to an agreementfor professional employer services between a client company and aprofessional employer organization.
"Commission" means the Virginia Workers' Compensation Commission as well asits former designation as the Virginia Industrial Commission.
"Employee" means:
1. a. Every person, including aliens and minors, in the service of anotherunder any contract of hire or apprenticeship, written or implied, whetherlawfully or unlawfully employed, except (i) one whose employment is not inthe usual course of the trade, business, occupation or profession of theemployer or (ii) as otherwise provided in subdivision 2 of this definition.
b. Any apprentice, trainee, or retrainee who is regularly employed whilereceiving training or instruction outside of regular working hours and offthe job, so long as the training or instruction is related to his employmentand is authorized by his employer.
c. Members of the Virginia National Guard and the Virginia Naval Militia,whether on duty in a paid or unpaid status or when performing voluntaryservice to their unit in a nonduty status at the request of their commander.
Income benefits for members of the National Guard or Naval Militia shall beterminated when they are able to return to their customary civilianemployment or self-employment. If they are neither employed norself-employed, those benefits shall terminate when they are able to return totheir military duties. If a member of the National Guard or Naval Militia whois fit to return to his customary civilian employment or self-employmentremains unable to perform his military duties and thereby suffers loss ofmilitary pay which he would otherwise have earned, he shall be entitled toone day of income benefits for each unit training assembly or day of paidtraining which he is unable to attend.
d. Members of the Virginia State Defense Force.
e. Registered members of the United States Civil Defense Corps of thisCommonwealth, whether on duty or in training.
f. Except as provided in subdivision 2 of this definition, all officers andemployees of the Commonwealth, including (i) forest wardens; (ii) judges,clerks, deputy clerks and employees of juvenile and domestic relationsdistrict courts and general district courts; and (iii) secretaries andadministrative assistants for officers and members of the General Assemblyemployed pursuant to § 30-19.4 and compensated as provided in the generalappropriation act, who shall be deemed employees of the Commonwealth.
g. Except as provided in subdivision 2 of this definition, all officers andemployees of a municipal corporation or political subdivision of theCommonwealth.
h. Except as provided in subdivision 2 of this definition, (i) everyexecutive officer, including president, vice-president, secretary, treasureror other officer, elected or appointed in accordance with the charter andbylaws of a corporation, municipal or otherwise and (ii) every manager of alimited liability company elected or appointed in accordance with thearticles of organization or operating agreement of the limited liabilitycompany.
i. Policemen and firefighters, sheriffs and their deputies, town sergeantsand their deputies, county and city commissioners of the revenue, county andcity treasurers, attorneys for the Commonwealth, clerks of circuit courts andtheir deputies, officers and employees, and electoral board members appointedin accordance with § 24.2-106, who shall be deemed employees of therespective cities, counties and towns in which their services are employedand by whom their salaries are paid or in which their compensation isearnable. However, notwithstanding the foregoing provision of thissubdivision, such individuals who would otherwise be deemed to be employeesof the city, county, or town in which their services are employed and by whomtheir salaries are paid or in which their compensation is earnable shall bedeemed to be employees of the Commonwealth while rendering aid outside of theCommonwealth pursuant to a request, approved by the Commonwealth, under theEmergency Management Assistance Compact enacted pursuant to § 44-146.28:1.
j. Members of the governing body of any county, city or town in theCommonwealth, whenever coverage under this title is extended to such membersby resolution or ordinance duly adopted.
k. Volunteers, officers and employees of any commission or board of anyauthority created or controlled by a local governing body, or any localagency or public service corporation owned, operated or controlled by suchlocal governing body, whenever coverage under this title is authorized byresolution or ordinance duly adopted by the governing board of any county,city, town, or any political subdivision thereof.
l. Except as provided in subdivision 2 of this definition, volunteerfirefighters, volunteer lifesaving or rescue squad members, volunteerlaw-enforcement chaplains, auxiliary or reserve police, auxiliary or reservedeputy sheriffs, volunteer emergency medical technicians, members ofvolunteer search and rescue organizations, volunteer members of regionalhazardous materials emergency response teams, volunteer members of communityemergency response teams, and volunteer members of medical reserve corps, whoshall be deemed employees of (i) the political subdivision or stateinstitution of higher education in which the principal office of suchvolunteer fire company, volunteer lifesaving or rescue squad, volunteerlaw-enforcement chaplains, auxiliary or reserve police force, auxiliary orreserve deputy sheriff force, volunteer emergency medical technicians,volunteer search and rescue organization, regional hazardous materialsemergency response team, community emergency response team, or medicalreserve corps is located if the governing body of such political subdivisionor state institution of higher education has adopted a resolutionacknowledging those persons as employees for the purposes of this title or(ii) in the case of volunteer firefighters or volunteer lifesaving or rescuesquad members, the companies or squads for which volunteer services areprovided whenever such companies or squads elect to be included as anemployer under this title.
m. (1) Volunteer firefighters, volunteer lifesaving or rescue squad members,volunteer law-enforcement chaplains, auxiliary or reserve police, auxiliaryor reserve deputy sheriffs, volunteer emergency medical technicians, membersof volunteer search and rescue organizations and any other persons whorespond to an incident upon request of the Department of EmergencyManagement, who shall be deemed employees of the Department of EmergencyManagement for the purposes of this title.
(2) Volunteer firefighters when engaged in firefighting activities under thesupervision and control of the Department of Forestry, who shall be deemedemployees of the Department of Forestry for the purposes of this title.
n. Any sole proprietor, shareholder of a stock corporation having only oneshareholder, member of a limited liability company having only one member, orall partners of a business electing to be included as an employee under theworkers' compensation coverage of such business if the insurer is notified ofthis election. Any sole proprietor, shareholder or member or the partnersshall, upon such election, be entitled to employee benefits and be subject toemployee responsibilities prescribed in this title.
When any partner or sole shareholder, member or proprietor is entitled toreceive coverage under this title, such person shall be subject to allprovisions of this title as if he were an employee; however, the noticesrequired under §§ 65.2-405 and 65.2-600 of this title shall be given to theinsurance carrier, and the panel of physicians required under § 65.2-603shall be selected by the insurance carrier.
o. The independent contractor of any employer subject to this title at theelection of such employer provided (i) the independent contractor agrees tosuch inclusion and (ii) unless the employer is self-insured, the employer'sinsurer agrees in writing to such inclusion. All or part of the cost of theinsurance coverage of the independent contractor may be borne by theindependent contractor.
When any independent contractor is entitled to receive coverage under thissection, such person shall be subject to all provisions of this title as ifhe were an employee, provided that the notices required under §§ 65.2-405 and65.2-600 are given either to the employer or its insurance carrier.
However, nothing in this title shall be construed to make the employees ofany independent contractor the employees of the person or corporationemploying or contracting with such independent contractor.
p. The legal representative, dependents and any other persons to whomcompensation may be payable when any person covered as an employee under thistitle shall be deceased.
q. Jail officers and jail superintendents employed by regional jails or jailfarm boards or authorities, whether created pursuant to Article 3.1 (§53.1-95.2 et seq.) or Article 5 (§ 53.1-105 et seq.) of Chapter 3 of Title53.1, or an act of assembly.
r. AmeriCorps members who receive stipends in return for volunteering inlocal, state and nonprofit agencies in the Commonwealth, who shall be deemedemployees of the Commonwealth for the purposes of this title.
s. Food Stamp recipients participating in the work experience component ofthe Food Stamp Employment and Training Program, who shall be deemed employeesof the Commonwealth for the purposes of this title.
t. Temporary Assistance for Needy Families recipients not eligible forMedicaid participating in the work experience component of the VirginiaInitiative for Employment Not Welfare Program, who shall be deemed employeesof the Commonwealth for the purposes of this title.
2. "Employee" shall not mean:
a. Officers and employees of the Commonwealth who are elected by the GeneralAssembly, or appointed by the Governor, either with or without theconfirmation of the Senate. This exception shall not apply to any "stateemployee" as defined in § 51.1-124.3 nor to Supreme Court Justices, judgesof the Court of Appeals, judges of the circuit or district courts, members ofthe Workers' Compensation Commission and the State Corporation Commission, orthe Superintendent of State Police.
b. Officers and employees of municipal corporations and politicalsubdivisions of the Commonwealth who are elected by the people or by thegoverning bodies, and who act in purely administrative capacities and are toserve for a definite term of office.
c. Any person who is a licensed real estate salesperson, or a licensed realestate broker associated with a real estate broker, if (i) substantially allof the salesperson's or associated broker's remuneration is derived from realestate commissions, (ii) the services of the salesperson or associated brokerare performed under a written contract specifying that the salesperson is anindependent contractor, and (iii) such contract includes a provision that thesalesperson or associated broker will not be treated as an employee forfederal income tax purposes.
d. Any taxicab or executive sedan driver, provided the Commission isfurnished evidence that such individual is excluded from taxation by theFederal Unemployment Tax Act.
e. Casual employees.
f. Domestic servants.
g. Farm and horticultural laborers, unless the employer regularly has inservice more than two full-time employees.
h. Employees of any person, firm or private corporation, including any publicservice corporation, that has regularly in service less than three employeesin the same business within this Commonwealth, unless such employees andtheir employers voluntarily elect to be bound by this title. However, thisexemption shall not apply to the operators of underground coal mines or theiremployees. An executive officer who is not paid salary or wages on a regularbasis at an agreed upon amount and who rejects coverage under this titlepursuant to § 65.2-300 shall not be included as an employee for purposes ofthis subdivision.
i. Employees of any common carrier by railroad engaging in commerce betweenany of the several states or territories or between the District of Columbiaand any of the states or territories and any foreign nation or nations, andany person suffering injury or death while he is employed by such carrier insuch commerce. This title shall not be construed to lessen the liability ofany such common carrier or to diminish or take away in any respect any rightthat any person so employed, or the personal representative, kindred orrelation, or dependent of such person, may have under the act of Congressrelating to the liability of common carriers by railroad to their employeesin certain cases, approved April 22, 1908, or under §§ 8.01-57 through8.01-62 or § 56-441.
j. Employees of common carriers by railroad who are engaged in intrastatetrade or commerce. However, this title shall not be construed to lessen theliability of such common carriers or take away or diminish any right that anyemployee or, in case of his death, the personal representative of suchemployee of such common carrier may have under §§ 8.01-57 through 8.01-61 or§ 56-441.
k. Except as provided in subdivision 1 of this definition, a member of avolunteer fire-fighting, lifesaving or rescue squad when engaged inactivities related principally to participation as a member of such squadwhether or not the volunteer continues to receive compensation from hisemployer for time away from the job.
l. Except as otherwise provided in this title, noncompensated employees andnoncompensated directors of corporations exempt from taxation pursuant to §501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of1954).
m. Any person performing services as a sports official for an entitysponsoring an interscholastic or intercollegiate sports event or any personperforming services as a sports official for a public entity or a private,nonprofit organization which sponsors an amateur sports event. For thepurposes of this subdivision, "sports official" includes an umpire,referee, judge, scorekeeper, timekeeper or other person who is a neutralparticipant in a sports event. This shall not include any person, otherwiseemployed by an organization or entity sponsoring a sports event, who performsservices as a sports official as part of his regular employment.
"Employer" includes (i) any person, the Commonwealth or any politicalsubdivision thereof and any individual, firm, association or corporation, orthe receiver or trustee of the same, or the legal representative of adeceased employer, using the service of another for pay and (ii) anyvolunteer fire company or volunteer lifesaving or rescue squad electing to beincluded and maintaining coverage as an employer under this title. If theemployer is insured, it includes his insurer so far as applicable.
"Executive officer" means (i) the president, vice-president, secretary,treasurer or other officer, elected or appointed in accordance with thecharter and bylaws of a corporation and (ii) the managers elected orappointed in accordance with the articles of organization or operatingagreement of a limited liability company. However, such term does not includenoncompensated officers of corporations exempt from taxation pursuant to §501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of1954).
"Filed" means hand delivered to the Commission's office in Richmond or anyregional office maintained by the Commission; sent by telegraph, electronicmail or other means of electronic transmission approved by the Commission orfacsimile transmission; or posted at any post office of the United StatesPostal Service by certified or registered mail. Filing by first-class mail,telegraph, electronic mail or other means of electronic transmission orfacsimile transmission shall be deemed completed only when the document orother material transmitted reaches the Commission or its designated agent.
"Injury" means only injury by accident arising out of and in the course ofthe employment or occupational disease as defined in Chapter 4 (§ 65.2-400 etseq.) of this title and does not include a disease in any form, except whenit results naturally and unavoidably from either of the foregoing causes.Such term shall not include any injury, disease or condition resulting froman employee's voluntary:
1. Participation in employer-sponsored off-duty recreational activities whichare not part of the employee's duties; or
2. Use of a motor vehicle that was provided to the employee by a motorvehicle dealer as defined by § 46.2-1500 and bears a dealer's license plateas defined by § 46.2-1550 for (i) commuting to or from work or (ii) any othernonwork activity.
Such term shall include any injury, disease or condition:
1. Arising out of and in the course of the employment of (a) an employee of ahospital as defined in § 32.1-123; (b) an employee of a health care provideras defined in § 8.01-581.1; (c) an employee of the Department of Health or alocal department of health; (d) a member of a search and rescue organization;or (e) any person described in clauses (i) through (iv), (vi), and (ix) ofsubsection A of § 65.2-402.1 otherwise subject to the provisions of thistitle; and
2. Resulting from (a) the administration of vaccinia (smallpox) vaccine,Cidofivir and derivatives thereof, or Vaccinia Immune Globulin as part offederally initiated smallpox countermeasures, or (b) transmission of vacciniain the course of employment from an employee participating in suchcountermeasures to a coemployee of the same employer.
"Professional employer organization" means any person that enters into awritten agreement with a client company to provide professional employerservices.
"Professional employer services" means services provided to a clientcompany pursuant to a written agreement with a professional employerorganization whereby the professional employer organization initially employsall or a majority of a client company's workforce and assumesresponsibilities as an employer for all coemployees that are assigned,allocated, or shared by the agreement between the professional employerorganization and the client company.
"Staffing service" means any person, other than a professional employerorganization, that hires its own employees and assigns them to a client tosupport or supplement the client's workforce. It includes temporary staffingservices that supply employees to clients in special work situations such asemployee absences, temporary skill shortages, seasonal workloads, and specialassignments and projects.
(Code 1950, §§ 65-2 through 65-7.1, 65-24, 65-25; 1952, c. 551; 1954, c. 246;1956, cc. 283, 479; 1956, Ex. Sess., c. 53; 1958, c. 187; 1960, c. 149; 1962,c. 530; 1964, c. 603; 1966, c. 200; 1968, c. 660, §§ 65.1-2, 65.1-3, 65.1-4,65.1-5 through 65.1-8, 65.1-27, 65.1-28; 1970, c. 470; 1971, Ex. Sess., c. 7;1972, cc. 464, 619; 1973, cc. 297, 542; 1975, c. 330, § 65.1-4.1; 1976, c.187; 1977, c. 326; 1978, cc. 41, 841; 1979, c. 80, § 65.1-2.1; 1980, c. 421,§ 65.1-4.2; 1983, c. 346; 1984, cc. 388, 694, 703, § 65.1-4.3; 1987, cc. 213,308, § 65.1-4.4; 1988, c. 360; 1989, cc. 312, 319, 437, §§ 65.1-4.5,65.1-4.6; 1990, c. 838, § 65.1-4.1:1; 1991, cc. 277, 354, 355; 1992, c. 12;1993, c. 280; 1994, cc. 271, 286, 526; 1995, cc. 4, 168, 272, 288; 1996, cc.250, 721; 1998, c. 52; 1999, c. 1006; 2000, cc. 301, 624, 718, 1018; 2002, c.69; 2003, c. 999; 2004, cc. 888, 928; 2005, cc. 354, 368, 374, 472; 2006, c.629; 2007, c. 475; 2010, cc. 158, 278.)
1. a. The earnings of the injured employee in the employment in which he wasworking at the time of the injury during the period of 52 weeks immediatelypreceding the date of the injury, divided by 52; but if the injured employeelost more than seven consecutive calendar days during such period, althoughnot in the same week, then the earnings for the remainder of the 52 weeksshall be divided by the number of weeks remaining after the time so lost hasbeen deducted. When the employment prior to the injury extended over a periodof less than 52 weeks, the method of dividing the earnings during that periodby the number of weeks and parts thereof during which the employee earnedwages shall be followed, provided that results fair and just to both partieswill be thereby obtained. When, by reason of a shortness of time during whichthe employee has been in the employment of his employer or the casual natureor terms of his employment, it is impractical to compute the average weeklywages as above defined, regard shall be had to the average weekly amountwhich during the 52 weeks previous to the injury was being earned by a personof the same grade and character employed in the same class of employment inthe same locality or community.
b. When for exceptional reasons the foregoing would be unfair either to theemployer or employee, such other method of computing average weekly wages maybe resorted to as will most nearly approximate the amount which the injuredemployee would be earning were it not for the injury.
2. Whenever allowances of any character made to an employee in lieu of wagesare a specified part of the wage contract, they shall be deemed a part of hisearnings. For the purpose of this title, the average weekly wage of themembers of the Virginia National Guard, the Virginia Naval Militia and theVirginia State Defense Force, registered members on duty or in training ofthe United States Civil Defense Corps of this Commonwealth, volunteerfirefighters engaged in firefighting activities under the supervision andcontrol of the Department of Forestry, and forest wardens shall be deemed tobe such amount as will entitle them to the maximum compensation payable underthis title; however, any award entered under the provisions of this title onbehalf of members of the National Guard, the Virginia Naval Militia or theirdependents, or registered members on duty or in training of the United StatesCivil Defense Corps of this Commonwealth or their dependents, shall besubject to credit for benefits paid them under existing or future federal lawon account of injury or occupational disease covered by the provisions ofthis title.
3. Whenever volunteer firefighters, volunteer lifesaving or volunteer rescuesquad members, volunteer law-enforcement chaplains, auxiliary or reservepolice, auxiliary or reserve deputy sheriffs, volunteer emergency medicaltechnicians, members of volunteer search and rescue organizations, volunteermembers of community emergency response teams, and volunteer members ofmedical reserve corps are deemed employees under this title, their averageweekly wage shall be deemed sufficient to produce the minimum compensationprovided by this title for injured workers or their dependents. For thepurposes of workers' compensation insurance premium calculations, the monthlypayroll for each volunteer firefighter or volunteer lifesaving or volunteerrescue squad member shall be deemed to be $300.
4. The average weekly wage of persons, other than those covered insubdivision 3 of this definition, who respond to a hazardous materialsincident at the request of the Department of Emergency Management shall bebased upon the earnings of such persons from their primary employers.
"Award" means the grant or denial of benefits or other relief under thistitle or any rule adopted pursuant thereto.
"Change in condition" means a change in physical condition of the employeeas well as any change in the conditions under which compensation was awarded,suspended, or terminated which would affect the right to, amount of, orduration of compensation.
"Client company" means any person that enters into an agreement forprofessional employer services with a professional employer organization.
"Coemployee" means an employee performing services pursuant to an agreementfor professional employer services between a client company and aprofessional employer organization.
"Commission" means the Virginia Workers' Compensation Commission as well asits former designation as the Virginia Industrial Commission.
"Employee" means:
1. a. Every person, including aliens and minors, in the service of anotherunder any contract of hire or apprenticeship, written or implied, whetherlawfully or unlawfully employed, except (i) one whose employment is not inthe usual course of the trade, business, occupation or profession of theemployer or (ii) as otherwise provided in subdivision 2 of this definition.
b. Any apprentice, trainee, or retrainee who is regularly employed whilereceiving training or instruction outside of regular working hours and offthe job, so long as the training or instruction is related to his employmentand is authorized by his employer.
c. Members of the Virginia National Guard and the Virginia Naval Militia,whether on duty in a paid or unpaid status or when performing voluntaryservice to their unit in a nonduty status at the request of their commander.
Income benefits for members of the National Guard or Naval Militia shall beterminated when they are able to return to their customary civilianemployment or self-employment. If they are neither employed norself-employed, those benefits shall terminate when they are able to return totheir military duties. If a member of the National Guard or Naval Militia whois fit to return to his customary civilian employment or self-employmentremains unable to perform his military duties and thereby suffers loss ofmilitary pay which he would otherwise have earned, he shall be entitled toone day of income benefits for each unit training assembly or day of paidtraining which he is unable to attend.
d. Members of the Virginia State Defense Force.
e. Registered members of the United States Civil Defense Corps of thisCommonwealth, whether on duty or in training.
f. Except as provided in subdivision 2 of this definition, all officers andemployees of the Commonwealth, including (i) forest wardens; (ii) judges,clerks, deputy clerks and employees of juvenile and domestic relationsdistrict courts and general district courts; and (iii) secretaries andadministrative assistants for officers and members of the General Assemblyemployed pursuant to § 30-19.4 and compensated as provided in the generalappropriation act, who shall be deemed employees of the Commonwealth.
g. Except as provided in subdivision 2 of this definition, all officers andemployees of a municipal corporation or political subdivision of theCommonwealth.
h. Except as provided in subdivision 2 of this definition, (i) everyexecutive officer, including president, vice-president, secretary, treasureror other officer, elected or appointed in accordance with the charter andbylaws of a corporation, municipal or otherwise and (ii) every manager of alimited liability company elected or appointed in accordance with thearticles of organization or operating agreement of the limited liabilitycompany.
i. Policemen and firefighters, sheriffs and their deputies, town sergeantsand their deputies, county and city commissioners of the revenue, county andcity treasurers, attorneys for the Commonwealth, clerks of circuit courts andtheir deputies, officers and employees, and electoral board members appointedin accordance with § 24.2-106, who shall be deemed employees of therespective cities, counties and towns in which their services are employedand by whom their salaries are paid or in which their compensation isearnable. However, notwithstanding the foregoing provision of thissubdivision, such individuals who would otherwise be deemed to be employeesof the city, county, or town in which their services are employed and by whomtheir salaries are paid or in which their compensation is earnable shall bedeemed to be employees of the Commonwealth while rendering aid outside of theCommonwealth pursuant to a request, approved by the Commonwealth, under theEmergency Management Assistance Compact enacted pursuant to § 44-146.28:1.
j. Members of the governing body of any county, city or town in theCommonwealth, whenever coverage under this title is extended to such membersby resolution or ordinance duly adopted.
k. Volunteers, officers and employees of any commission or board of anyauthority created or controlled by a local governing body, or any localagency or public service corporation owned, operated or controlled by suchlocal governing body, whenever coverage under this title is authorized byresolution or ordinance duly adopted by the governing board of any county,city, town, or any political subdivision thereof.
l. Except as provided in subdivision 2 of this definition, volunteerfirefighters, volunteer lifesaving or rescue squad members, volunteerlaw-enforcement chaplains, auxiliary or reserve police, auxiliary or reservedeputy sheriffs, volunteer emergency medical technicians, members ofvolunteer search and rescue organizations, volunteer members of regionalhazardous materials emergency response teams, volunteer members of communityemergency response teams, and volunteer members of medical reserve corps, whoshall be deemed employees of (i) the political subdivision or stateinstitution of higher education in which the principal office of suchvolunteer fire company, volunteer lifesaving or rescue squad, volunteerlaw-enforcement chaplains, auxiliary or reserve police force, auxiliary orreserve deputy sheriff force, volunteer emergency medical technicians,volunteer search and rescue organization, regional hazardous materialsemergency response team, community emergency response team, or medicalreserve corps is located if the governing body of such political subdivisionor state institution of higher education has adopted a resolutionacknowledging those persons as employees for the purposes of this title or(ii) in the case of volunteer firefighters or volunteer lifesaving or rescuesquad members, the companies or squads for which volunteer services areprovided whenever such companies or squads elect to be included as anemployer under this title.
m. (1) Volunteer firefighters, volunteer lifesaving or rescue squad members,volunteer law-enforcement chaplains, auxiliary or reserve police, auxiliaryor reserve deputy sheriffs, volunteer emergency medical technicians, membersof volunteer search and rescue organizations and any other persons whorespond to an incident upon request of the Department of EmergencyManagement, who shall be deemed employees of the Department of EmergencyManagement for the purposes of this title.
(2) Volunteer firefighters when engaged in firefighting activities under thesupervision and control of the Department of Forestry, who shall be deemedemployees of the Department of Forestry for the purposes of this title.
n. Any sole proprietor, shareholder of a stock corporation having only oneshareholder, member of a limited liability company having only one member, orall partners of a business electing to be included as an employee under theworkers' compensation coverage of such business if the insurer is notified ofthis election. Any sole proprietor, shareholder or member or the partnersshall, upon such election, be entitled to employee benefits and be subject toemployee responsibilities prescribed in this title.
When any partner or sole shareholder, member or proprietor is entitled toreceive coverage under this title, such person shall be subject to allprovisions of this title as if he were an employee; however, the noticesrequired under §§ 65.2-405 and 65.2-600 of this title shall be given to theinsurance carrier, and the panel of physicians required under § 65.2-603shall be selected by the insurance carrier.
o. The independent contractor of any employer subject to this title at theelection of such employer provided (i) the independent contractor agrees tosuch inclusion and (ii) unless the employer is self-insured, the employer'sinsurer agrees in writing to such inclusion. All or part of the cost of theinsurance coverage of the independent contractor may be borne by theindependent contractor.
When any independent contractor is entitled to receive coverage under thissection, such person shall be subject to all provisions of this title as ifhe were an employee, provided that the notices required under §§ 65.2-405 and65.2-600 are given either to the employer or its insurance carrier.
However, nothing in this title shall be construed to make the employees ofany independent contractor the employees of the person or corporationemploying or contracting with such independent contractor.
p. The legal representative, dependents and any other persons to whomcompensation may be payable when any person covered as an employee under thistitle shall be deceased.
q. Jail officers and jail superintendents employed by regional jails or jailfarm boards or authorities, whether created pursuant to Article 3.1 (§53.1-95.2 et seq.) or Article 5 (§ 53.1-105 et seq.) of Chapter 3 of Title53.1, or an act of assembly.
r. AmeriCorps members who receive stipends in return for volunteering inlocal, state and nonprofit agencies in the Commonwealth, who shall be deemedemployees of the Commonwealth for the purposes of this title.
s. Food Stamp recipients participating in the work experience component ofthe Food Stamp Employment and Training Program, who shall be deemed employeesof the Commonwealth for the purposes of this title.
t. Temporary Assistance for Needy Families recipients not eligible forMedicaid participating in the work experience component of the VirginiaInitiative for Employment Not Welfare Program, who shall be deemed employeesof the Commonwealth for the purposes of this title.
2. "Employee" shall not mean:
a. Officers and employees of the Commonwealth who are elected by the GeneralAssembly, or appointed by the Governor, either with or without theconfirmation of the Senate. This exception shall not apply to any "stateemployee" as defined in § 51.1-124.3 nor to Supreme Court Justices, judgesof the Court of Appeals, judges of the circuit or district courts, members ofthe Workers' Compensation Commission and the State Corporation Commission, orthe Superintendent of State Police.
b. Officers and employees of municipal corporations and politicalsubdivisions of the Commonwealth who are elected by the people or by thegoverning bodies, and who act in purely administrative capacities and are toserve for a definite term of office.
c. Any person who is a licensed real estate salesperson, or a licensed realestate broker associated with a real estate broker, if (i) substantially allof the salesperson's or associated broker's remuneration is derived from realestate commissions, (ii) the services of the salesperson or associated brokerare performed under a written contract specifying that the salesperson is anindependent contractor, and (iii) such contract includes a provision that thesalesperson or associated broker will not be treated as an employee forfederal income tax purposes.
d. Any taxicab or executive sedan driver, provided the Commission isfurnished evidence that such individual is excluded from taxation by theFederal Unemployment Tax Act.
e. Casual employees.
f. Domestic servants.
g. Farm and horticultural laborers, unless the employer regularly has inservice more than two full-time employees.
h. Employees of any person, firm or private corporation, including any publicservice corporation, that has regularly in service less than three employeesin the same business within this Commonwealth, unless such employees andtheir employers voluntarily elect to be bound by this title. However, thisexemption shall not apply to the operators of underground coal mines or theiremployees. An executive officer who is not paid salary or wages on a regularbasis at an agreed upon amount and who rejects coverage under this titlepursuant to § 65.2-300 shall not be included as an employee for purposes ofthis subdivision.
i. Employees of any common carrier by railroad engaging in commerce betweenany of the several states or territories or between the District of Columbiaand any of the states or territories and any foreign nation or nations, andany person suffering injury or death while he is employed by such carrier insuch commerce. This title shall not be construed to lessen the liability ofany such common carrier or to diminish or take away in any respect any rightthat any person so employed, or the personal representative, kindred orrelation, or dependent of such person, may have under the act of Congressrelating to the liability of common carriers by railroad to their employeesin certain cases, approved April 22, 1908, or under §§ 8.01-57 through8.01-62 or § 56-441.
j. Employees of common carriers by railroad who are engaged in intrastatetrade or commerce. However, this title shall not be construed to lessen theliability of such common carriers or take away or diminish any right that anyemployee or, in case of his death, the personal representative of suchemployee of such common carrier may have under §§ 8.01-57 through 8.01-61 or§ 56-441.
k. Except as provided in subdivision 1 of this definition, a member of avolunteer fire-fighting, lifesaving or rescue squad when engaged inactivities related principally to participation as a member of such squadwhether or not the volunteer continues to receive compensation from hisemployer for time away from the job.
l. Except as otherwise provided in this title, noncompensated employees andnoncompensated directors of corporations exempt from taxation pursuant to §501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of1954).
m. Any person performing services as a sports official for an entitysponsoring an interscholastic or intercollegiate sports event or any personperforming services as a sports official for a public entity or a private,nonprofit organization which sponsors an amateur sports event. For thepurposes of this subdivision, "sports official" includes an umpire,referee, judge, scorekeeper, timekeeper or other person who is a neutralparticipant in a sports event. This shall not include any person, otherwiseemployed by an organization or entity sponsoring a sports event, who performsservices as a sports official as part of his regular employment.
"Employer" includes (i) any person, the Commonwealth or any politicalsubdivision thereof and any individual, firm, association or corporation, orthe receiver or trustee of the same, or the legal representative of adeceased employer, using the service of another for pay and (ii) anyvolunteer fire company or volunteer lifesaving or rescue squad electing to beincluded and maintaining coverage as an employer under this title. If theemployer is insured, it includes his insurer so far as applicable.
"Executive officer" means (i) the president, vice-president, secretary,treasurer or other officer, elected or appointed in accordance with thecharter and bylaws of a corporation and (ii) the managers elected orappointed in accordance with the articles of organization or operatingagreement of a limited liability company. However, such term does not includenoncompensated officers of corporations exempt from taxation pursuant to §501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of1954).
"Filed" means hand delivered to the Commission's office in Richmond or anyregional office maintained by the Commission; sent by telegraph, electronicmail or other means of electronic transmission approved by the Commission orfacsimile transmission; or posted at any post office of the United StatesPostal Service by certified or registered mail. Filing by first-class mail,telegraph, electronic mail or other means of electronic transmission orfacsimile transmission shall be deemed completed only when the document orother material transmitted reaches the Commission or its designated agent.
"Injury" means only injury by accident arising out of and in the course ofthe employment or occupational disease as defined in Chapter 4 (§ 65.2-400 etseq.) of this title and does not include a disease in any form, except whenit results naturally and unavoidably from either of the foregoing causes.Such term shall not include any injury, disease or condition resulting froman employee's voluntary:
1. Participation in employer-sponsored off-duty recreational activities whichare not part of the employee's duties; or
2. Use of a motor vehicle that was provided to the employee by a motorvehicle dealer as defined by § 46.2-1500 and bears a dealer's license plateas defined by § 46.2-1550 for (i) commuting to or from work or (ii) any othernonwork activity.
Such term shall include any injury, disease or condition:
1. Arising out of and in the course of the employment of (a) an employee of ahospital as defined in § 32.1-123; (b) an employee of a health care provideras defined in § 8.01-581.1; (c) an employee of the Department of Health or alocal department of health; (d) a member of a search and rescue organization;or (e) any person described in clauses (i) through (iv), (vi), and (ix) ofsubsection A of § 65.2-402.1 otherwise subject to the provisions of thistitle; and
2. Resulting from (a) the administration of vaccinia (smallpox) vaccine,Cidofivir and derivatives thereof, or Vaccinia Immune Globulin as part offederally initiated smallpox countermeasures, or (b) transmission of vacciniain the course of employment from an employee participating in suchcountermeasures to a coemployee of the same employer.
"Professional employer organization" means any person that enters into awritten agreement with a client company to provide professional employerservices.
"Professional employer services" means services provided to a clientcompany pursuant to a written agreement with a professional employerorganization whereby the professional employer organization initially employsall or a majority of a client company's workforce and assumesresponsibilities as an employer for all coemployees that are assigned,allocated, or shared by the agreement between the professional employerorganization and the client company.
"Staffing service" means any person, other than a professional employerorganization, that hires its own employees and assigns them to a client tosupport or supplement the client's workforce. It includes temporary staffingservices that supply employees to clients in special work situations such asemployee absences, temporary skill shortages, seasonal workloads, and specialassignments and projects.
(Code 1950, §§ 65-2 through 65-7.1, 65-24, 65-25; 1952, c. 551; 1954, c. 246;1956, cc. 283, 479; 1956, Ex. Sess., c. 53; 1958, c. 187; 1960, c. 149; 1962,c. 530; 1964, c. 603; 1966, c. 200; 1968, c. 660, §§ 65.1-2, 65.1-3, 65.1-4,65.1-5 through 65.1-8, 65.1-27, 65.1-28; 1970, c. 470; 1971, Ex. Sess., c. 7;1972, cc. 464, 619; 1973, cc. 297, 542; 1975, c. 330, § 65.1-4.1; 1976, c.187; 1977, c. 326; 1978, cc. 41, 841; 1979, c. 80, § 65.1-2.1; 1980, c. 421,§ 65.1-4.2; 1983, c. 346; 1984, cc. 388, 694, 703, § 65.1-4.3; 1987, cc. 213,308, § 65.1-4.4; 1988, c. 360; 1989, cc. 312, 319, 437, §§ 65.1-4.5,65.1-4.6; 1990, c. 838, § 65.1-4.1:1; 1991, cc. 277, 354, 355; 1992, c. 12;1993, c. 280; 1994, cc. 271, 286, 526; 1995, cc. 4, 168, 272, 288; 1996, cc.250, 721; 1998, c. 52; 1999, c. 1006; 2000, cc. 301, 624, 718, 1018; 2002, c.69; 2003, c. 999; 2004, cc. 888, 928; 2005, cc. 354, 368, 374, 472; 2006, c.629; 2007, c. 475; 2010, cc. 158, 278.)
1. a. The earnings of the injured employee in the employment in which he wasworking at the time of the injury during the period of 52 weeks immediatelypreceding the date of the injury, divided by 52; but if the injured employeelost more than seven consecutive calendar days during such period, althoughnot in the same week, then the earnings for the remainder of the 52 weeksshall be divided by the number of weeks remaining after the time so lost hasbeen deducted. When the employment prior to the injury extended over a periodof less than 52 weeks, the method of dividing the earnings during that periodby the number of weeks and parts thereof during which the employee earnedwages shall be followed, provided that results fair and just to both partieswill be thereby obtained. When, by reason of a shortness of time during whichthe employee has been in the employment of his employer or the casual natureor terms of his employment, it is impractical to compute the average weeklywages as above defined, regard shall be had to the average weekly amountwhich during the 52 weeks previous to the injury was being earned by a personof the same grade and character employed in the same class of employment inthe same locality or community.
b. When for exceptional reasons the foregoing would be unfair either to theemployer or employee, such other method of computing average weekly wages maybe resorted to as will most nearly approximate the amount which the injuredemployee would be earning were it not for the injury.
2. Whenever allowances of any character made to an employee in lieu of wagesare a specified part of the wage contract, they shall be deemed a part of hisearnings. For the purpose of this title, the average weekly wage of themembers of the Virginia National Guard, the Virginia Naval Militia and theVirginia State Defense Force, registered members on duty or in training ofthe United States Civil Defense Corps of this Commonwealth, volunteerfirefighters engaged in firefighting activities under the supervision andcontrol of the Department of Forestry, and forest wardens shall be deemed tobe such amount as will entitle them to the maximum compensation payable underthis title; however, any award entered under the provisions of this title onbehalf of members of the National Guard, the Virginia Naval Militia or theirdependents, or registered members on duty or in training of the United StatesCivil Defense Corps of this Commonwealth or their dependents, shall besubject to credit for benefits paid them under existing or future federal lawon account of injury or occupational disease covered by the provisions ofthis title.
3. Whenever volunteer firefighters, volunteer lifesaving or volunteer rescuesquad members, volunteer law-enforcement chaplains, auxiliary or reservepolice, auxiliary or reserve deputy sheriffs, volunteer emergency medicaltechnicians, members of volunteer search and rescue organizations, volunteermembers of community emergency response teams, and volunteer members ofmedical reserve corps are deemed employees under this title, their averageweekly wage shall be deemed sufficient to produce the minimum compensationprovided by this title for injured workers or their dependents. For thepurposes of workers' compensation insurance premium calculations, the monthlypayroll for each volunteer firefighter or volunteer lifesaving or volunteerrescue squad member shall be deemed to be $300.
4. The average weekly wage of persons, other than those covered insubdivision 3 of this definition, who respond to a hazardous materialsincident at the request of the Department of Emergency Management shall bebased upon the earnings of such persons from their primary employers.
"Award" means the grant or denial of benefits or other relief under thistitle or any rule adopted pursuant thereto.
"Change in condition" means a change in physical condition of the employeeas well as any change in the conditions under which compensation was awarded,suspended, or terminated which would affect the right to, amount of, orduration of compensation.
"Client company" means any person that enters into an agreement forprofessional employer services with a professional employer organization.
"Coemployee" means an employee performing services pursuant to an agreementfor professional employer services between a client company and aprofessional employer organization.
"Commission" means the Virginia Workers' Compensation Commission as well asits former designation as the Virginia Industrial Commission.
"Employee" means:
1. a. Every person, including aliens and minors, in the service of anotherunder any contract of hire or apprenticeship, written or implied, whetherlawfully or unlawfully employed, except (i) one whose employment is not inthe usual course of the trade, business, occupation or profession of theemployer or (ii) as otherwise provided in subdivision 2 of this definition.
b. Any apprentice, trainee, or retrainee who is regularly employed whilereceiving training or instruction outside of regular working hours and offthe job, so long as the training or instruction is related to his employmentand is authorized by his employer.
c. Members of the Virginia National Guard and the Virginia Naval Militia,whether on duty in a paid or unpaid status or when performing voluntaryservice to their unit in a nonduty status at the request of their commander.
Income benefits for members of the National Guard or Naval Militia shall beterminated when they are able to return to their customary civilianemployment or self-employment. If they are neither employed norself-employed, those benefits shall terminate when they are able to return totheir military duties. If a member of the National Guard or Naval Militia whois fit to return to his customary civilian employment or self-employmentremains unable to perform his military duties and thereby suffers loss ofmilitary pay which he would otherwise have earned, he shall be entitled toone day of income benefits for each unit training assembly or day of paidtraining which he is unable to attend.
d. Members of the Virginia State Defense Force.
e. Registered members of the United States Civil Defense Corps of thisCommonwealth, whether on duty or in training.
f. Except as provided in subdivision 2 of this definition, all officers andemployees of the Commonwealth, including (i) forest wardens; (ii) judges,clerks, deputy clerks and employees of juvenile and domestic relationsdistrict courts and general district courts; and (iii) secretaries andadministrative assistants for officers and members of the General Assemblyemployed pursuant to § 30-19.4 and compensated as provided in the generalappropriation act, who shall be deemed employees of the Commonwealth.
g. Except as provided in subdivision 2 of this definition, all officers andemployees of a municipal corporation or political subdivision of theCommonwealth.
h. Except as provided in subdivision 2 of this definition, (i) everyexecutive officer, including president, vice-president, secretary, treasureror other officer, elected or appointed in accordance with the charter andbylaws of a corporation, municipal or otherwise and (ii) every manager of alimited liability company elected or appointed in accordance with thearticles of organization or operating agreement of the limited liabilitycompany.
i. Policemen and firefighters, sheriffs and their deputies, town sergeantsand their deputies, county and city commissioners of the revenue, county andcity treasurers, attorneys for the Commonwealth, clerks of circuit courts andtheir deputies, officers and employees, and electoral board members appointedin accordance with § 24.2-106, who shall be deemed employees of therespective cities, counties and towns in which their services are employedand by whom their salaries are paid or in which their compensation isearnable. However, notwithstanding the foregoing provision of thissubdivision, such individuals who would otherwise be deemed to be employeesof the city, county, or town in which their services are employed and by whomtheir salaries are paid or in which their compensation is earnable shall bedeemed to be employees of the Commonwealth while rendering aid outside of theCommonwealth pursuant to a request, approved by the Commonwealth, under theEmergency Management Assistance Compact enacted pursuant to § 44-146.28:1.
j. Members of the governing body of any county, city or town in theCommonwealth, whenever coverage under this title is extended to such membersby resolution or ordinance duly adopted.
k. Volunteers, officers and employees of any commission or board of anyauthority created or controlled by a local governing body, or any localagency or public service corporation owned, operated or controlled by suchlocal governing body, whenever coverage under this title is authorized byresolution or ordinance duly adopted by the governing board of any county,city, town, or any political subdivision thereof.
l. Except as provided in subdivision 2 of this definition, volunteerfirefighters, volunteer lifesaving or rescue squad members, volunteerlaw-enforcement chaplains, auxiliary or reserve police, auxiliary or reservedeputy sheriffs, volunteer emergency medical technicians, members ofvolunteer search and rescue organizations, volunteer members of regionalhazardous materials emergency response teams, volunteer members of communityemergency response teams, and volunteer members of medical reserve corps, whoshall be deemed employees of (i) the political subdivision or stateinstitution of higher education in which the principal office of suchvolunteer fire company, volunteer lifesaving or rescue squad, volunteerlaw-enforcement chaplains, auxiliary or reserve police force, auxiliary orreserve deputy sheriff force, volunteer emergency medical technicians,volunteer search and rescue organization, regional hazardous materialsemergency response team, community emergency response team, or medicalreserve corps is located if the governing body of such political subdivisionor state institution of higher education has adopted a resolutionacknowledging those persons as employees for the purposes of this title or(ii) in the case of volunteer firefighters or volunteer lifesaving or rescuesquad members, the companies or squads for which volunteer services areprovided whenever such companies or squads elect to be included as anemployer under this title.
m. (1) Volunteer firefighters, volunteer lifesaving or rescue squad members,volunteer law-enforcement chaplains, auxiliary or reserve police, auxiliaryor reserve deputy sheriffs, volunteer emergency medical technicians, membersof volunteer search and rescue organizations and any other persons whorespond to an incident upon request of the Department of EmergencyManagement, who shall be deemed employees of the Department of EmergencyManagement for the purposes of this title.
(2) Volunteer firefighters when engaged in firefighting activities under thesupervision and control of the Department of Forestry, who shall be deemedemployees of the Department of Forestry for the purposes of this title.
n. Any sole proprietor, shareholder of a stock corporation having only oneshareholder, member of a limited liability company having only one member, orall partners of a business electing to be included as an employee under theworkers' compensation coverage of such business if the insurer is notified ofthis election. Any sole proprietor, shareholder or member or the partnersshall, upon such election, be entitled to employee benefits and be subject toemployee responsibilities prescribed in this title.
When any partner or sole shareholder, member or proprietor is entitled toreceive coverage under this title, such person shall be subject to allprovisions of this title as if he were an employee; however, the noticesrequired under §§ 65.2-405 and 65.2-600 of this title shall be given to theinsurance carrier, and the panel of physicians required under § 65.2-603shall be selected by the insurance carrier.
o. The independent contractor of any employer subject to this title at theelection of such employer provided (i) the independent contractor agrees tosuch inclusion and (ii) unless the employer is self-insured, the employer'sinsurer agrees in writing to such inclusion. All or part of the cost of theinsurance coverage of the independent contractor may be borne by theindependent contractor.
When any independent contractor is entitled to receive coverage under thissection, such person shall be subject to all provisions of this title as ifhe were an employee, provided that the notices required under §§ 65.2-405 and65.2-600 are given either to the employer or its insurance carrier.
However, nothing in this title shall be construed to make the employees ofany independent contractor the employees of the person or corporationemploying or contracting with such independent contractor.
p. The legal representative, dependents and any other persons to whomcompensation may be payable when any person covered as an employee under thistitle shall be deceased.
q. Jail officers and jail superintendents employed by regional jails or jailfarm boards or authorities, whether created pursuant to Article 3.1 (§53.1-95.2 et seq.) or Article 5 (§ 53.1-105 et seq.) of Chapter 3 of Title53.1, or an act of assembly.
r. AmeriCorps members who receive stipends in return for volunteering inlocal, state and nonprofit agencies in the Commonwealth, who shall be deemedemployees of the Commonwealth for the purposes of this title.
s. Food Stamp recipients participating in the work experience component ofthe Food Stamp Employment and Training Program, who shall be deemed employeesof the Commonwealth for the purposes of this title.
t. Temporary Assistance for Needy Families recipients not eligible forMedicaid participating in the work experience component of the VirginiaInitiative for Employment Not Welfare Program, who shall be deemed employeesof the Commonwealth for the purposes of this title.
2. "Employee" shall not mean:
a. Officers and employees of the Commonwealth who are elected by the GeneralAssembly, or appointed by the Governor, either with or without theconfirmation of the Senate. This exception shall not apply to any "stateemployee" as defined in § 51.1-124.3 nor to Supreme Court Justices, judgesof the Court of Appeals, judges of the circuit or district courts, members ofthe Workers' Compensation Commission and the State Corporation Commission, orthe Superintendent of State Police.
b. Officers and employees of municipal corporations and politicalsubdivisions of the Commonwealth who are elected by the people or by thegoverning bodies, and who act in purely administrative capacities and are toserve for a definite term of office.
c. Any person who is a licensed real estate salesperson, or a licensed realestate broker associated with a real estate broker, if (i) substantially allof the salesperson's or associated broker's remuneration is derived from realestate commissions, (ii) the services of the salesperson or associated brokerare performed under a written contract specifying that the salesperson is anindependent contractor, and (iii) such contract includes a provision that thesalesperson or associated broker will not be treated as an employee forfederal income tax purposes.
d. Any taxicab or executive sedan driver, provided the Commission isfurnished evidence that such individual is excluded from taxation by theFederal Unemployment Tax Act.
e. Casual employees.
f. Domestic servants.
g. Farm and horticultural laborers, unless the employer regularly has inservice more than two full-time employees.
h. Employees of any person, firm or private corporation, including any publicservice corporation, that has regularly in service less than three employeesin the same business within this Commonwealth, unless such employees andtheir employers voluntarily elect to be bound by this title. However, thisexemption shall not apply to the operators of underground coal mines or theiremployees. An executive officer who is not paid salary or wages on a regularbasis at an agreed upon amount and who rejects coverage under this titlepursuant to § 65.2-300 shall not be included as an employee for purposes ofthis subdivision.
i. Employees of any common carrier by railroad engaging in commerce betweenany of the several states or territories or between the District of Columbiaand any of the states or territories and any foreign nation or nations, andany person suffering injury or death while he is employed by such carrier insuch commerce. This title shall not be construed to lessen the liability ofany such common carrier or to diminish or take away in any respect any rightthat any person so employed, or the personal representative, kindred orrelation, or dependent of such person, may have under the act of Congressrelating to the liability of common carriers by railroad to their employeesin certain cases, approved April 22, 1908, or under §§ 8.01-57 through8.01-62 or § 56-441.
j. Employees of common carriers by railroad who are engaged in intrastatetrade or commerce. However, this title shall not be construed to lessen theliability of such common carriers or take away or diminish any right that anyemployee or, in case of his death, the personal representative of suchemployee of such common carrier may have under §§ 8.01-57 through 8.01-61 or§ 56-441.
k. Except as provided in subdivision 1 of this definition, a member of avolunteer fire-fighting, lifesaving or rescue squad when engaged inactivities related principally to participation as a member of such squadwhether or not the volunteer continues to receive compensation from hisemployer for time away from the job.
l. Except as otherwise provided in this title, noncompensated employees andnoncompensated directors of corporations exempt from taxation pursuant to §501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of1954).
m. Any person performing services as a sports official for an entitysponsoring an interscholastic or intercollegiate sports event or any personperforming services as a sports official for a public entity or a private,nonprofit organization which sponsors an amateur sports event. For thepurposes of this subdivision, "sports official" includes an umpire,referee, judge, scorekeeper, timekeeper or other person who is a neutralparticipant in a sports event. This shall not include any person, otherwiseemployed by an organization or entity sponsoring a sports event, who performsservices as a sports official as part of his regular employment.
"Employer" includes (i) any person, the Commonwealth or any politicalsubdivision thereof and any individual, firm, association or corporation, orthe receiver or trustee of the same, or the legal representative of adeceased employer, using the service of another for pay and (ii) anyvolunteer fire company or volunteer lifesaving or rescue squad electing to beincluded and maintaining coverage as an employer under this title. If theemployer is insured, it includes his insurer so far as applicable.
"Executive officer" means (i) the president, vice-president, secretary,treasurer or other officer, elected or appointed in accordance with thecharter and bylaws of a corporation and (ii) the managers elected orappointed in accordance with the articles of organization or operatingagreement of a limited liability company. However, such term does not includenoncompensated officers of corporations exempt from taxation pursuant to §501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of1954).
"Filed" means hand delivered to the Commission's office in Richmond or anyregional office maintained by the Commission; sent by telegraph, electronicmail or other means of electronic transmission approved by the Commission orfacsimile transmission; or posted at any post office of the United StatesPostal Service by certified or registered mail. Filing by first-class mail,telegraph, electronic mail or other means of electronic transmission orfacsimile transmission shall be deemed completed only when the document orother material transmitted reaches the Commission or its designated agent.
"Injury" means only injury by accident arising out of and in the course ofthe employment or occupational disease as defined in Chapter 4 (§ 65.2-400 etseq.) of this title and does not include a disease in any form, except whenit results naturally and unavoidably from either of the foregoing causes.Such term shall not include any injury, disease or condition resulting froman employee's voluntary:
1. Participation in employer-sponsored off-duty recreational activities whichare not part of the employee's duties; or
2. Use of a motor vehicle that was provided to the employee by a motorvehicle dealer as defined by § 46.2-1500 and bears a dealer's license plateas defined by § 46.2-1550 for (i) commuting to or from work or (ii) any othernonwork activity.
Such term shall include any injury, disease or condition:
1. Arising out of and in the course of the employment of (a) an employee of ahospital as defined in § 32.1-123; (b) an employee of a health care provideras defined in § 8.01-581.1; (c) an employee of the Department of Health or alocal department of health; (d) a member of a search and rescue organization;or (e) any person described in clauses (i) through (iv), (vi), and (ix) ofsubsection A of § 65.2-402.1 otherwise subject to the provisions of thistitle; and
2. Resulting from (a) the administration of vaccinia (smallpox) vaccine,Cidofivir and derivatives thereof, or Vaccinia Immune Globulin as part offederally initiated smallpox countermeasures, or (b) transmission of vacciniain the course of employment from an employee participating in suchcountermeasures to a coemployee of the same employer.
"Professional employer organization" means any person that enters into awritten agreement with a client company to provide professional employerservices.
"Professional employer services" means services provided to a clientcompany pursuant to a written agreement with a professional employerorganization whereby the professional employer organization initially employsall or a majority of a client company's workforce and assumesresponsibilities as an employer for all coemployees that are assigned,allocated, or shared by the agreement between the professional employerorganization and the client company.
"Staffing service" means any person, other than a professional employerorganization, that hires its own employees and assigns them to a client tosupport or supplement the client's workforce. It includes temporary staffingservices that supply employees to clients in special work situations such asemployee absences, temporary skill shortages, seasonal workloads, and specialassignments and projects.
(Code 1950, §§ 65-2 through 65-7.1, 65-24, 65-25; 1952, c. 551; 1954, c. 246;1956, cc. 283, 479; 1956, Ex. Sess., c. 53; 1958, c. 187; 1960, c. 149; 1962,c. 530; 1964, c. 603; 1966, c. 200; 1968, c. 660, §§ 65.1-2, 65.1-3, 65.1-4,65.1-5 through 65.1-8, 65.1-27, 65.1-28; 1970, c. 470; 1971, Ex. Sess., c. 7;1972, cc. 464, 619; 1973, cc. 297, 542; 1975, c. 330, § 65.1-4.1; 1976, c.187; 1977, c. 326; 1978, cc. 41, 841; 1979, c. 80, § 65.1-2.1; 1980, c. 421,§ 65.1-4.2; 1983, c. 346; 1984, cc. 388, 694, 703, § 65.1-4.3; 1987, cc. 213,308, § 65.1-4.4; 1988, c. 360; 1989, cc. 312, 319, 437, §§ 65.1-4.5,65.1-4.6; 1990, c. 838, § 65.1-4.1:1; 1991, cc. 277, 354, 355; 1992, c. 12;1993, c. 280; 1994, cc. 271, 286, 526; 1995, cc. 4, 168, 272, 288; 1996, cc.250, 721; 1998, c. 52; 1999, c. 1006; 2000, cc. 301, 624, 718, 1018; 2002, c.69; 2003, c. 999; 2004, cc. 888, 928; 2005, cc. 354, 368, 374, 472; 2006, c.629; 2007, c. 475; 2010, cc. 158, 278.)
