Did you know that longshoremen aren’t the only employees covered by the Longshore and Harbor Workers’ Compensation Act? If you didn’t, you’re not alone. Identifying who is covered by the Longshore Act isn’t always easy. This can be a huge problem because violations of the Longshore Act’s compensation requirements can result in criminal prosecution, fines, and imprisonment. Corporate officers can also be prosecuted individually and held personally liable.

The Longshore Act is essentially a federal workers’ compensation law for employees engaged in maritime employment who work on the navigable waters of the United States. It generally provides medical benefits, lost wages and rehabilitation services to injured employees. Survivor benefits may also be available if a work-related injury causes the employee’s death.

Some employers are authorized by the Department of Labor to self-insure, but all other covered employers are required to purchase the Longshore Act (USL&H) insurance coverage. Two tests are used to determine whether coverage is required under the Longshore Act.

Status Test. An injured worker must meet the statutory definition of “employee” to possess the necessary employment status. The Longshore Act defines an employee as any person engaged in maritime employment, including:

  • Longshoremen;
  • Harbor workers;
  • Ship repairmen;
  • Shipbuilders;
  • Ship-breakers; and
  • Others engaged in ship loading or unloading operations and traditional maritime employment.

Some individuals, who must be covered under their state’s workers’ compensation law, are specifically excluded from the definition of employee, including those who are:

  • Employed exclusively to perform office clerical, secretarial, security or data processing work;
  • Employed by a marina who are not engaged in construction, replacement or expansion of such marina (except for routine maintenance);
  • Employed by suppliers, transporters or vendors who are temporarily working on the premises of a covered employer but who are not engaged in work normally performed by employees of that employer;
  • Employed to build any recreational vessel under sixty-five feet in length or to repair any recreational vessel or dismantle any part of a recreational vessel in connection with the repair of such vessel; or
  • Masters or crew members of any vessel.

Situs Test. The workplace injury or death must occur upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining areas customarily used by an employer in loading, unloading, repairing, or building a vessel. Navigable waters may include:

  • Waters that are subject to the ebb and flow of the tide; and
  • Waters that are being used, have been used or may be used to transport interstate or foreign commerce.

Coverage under the Longshore Act isn’t always clear. Even the Department of Labor admits that coverage can be a complex issue, depending on both the location and the nature of the employee’s work. Statutory extensions, like the Defense Base Act and the Outer Continental Shelf Lands Act, can complicate matters further.

Nevertheless, employers need to know if they are covered by the Longshore Act. Employers should not rely on their state-required workers’ compensation insurance because standard workers’ compensation policies do not cover employees who are subject to the Longshore Act. Covered employers must have USL&H insurance coverage.

Please contact us if you have any questions about USL&H insurance coverage. You can subscribe to our newsletter to receive regular insurance and risk management informational updates.

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