4-1-1 on Comp: Poll Workers and Work Comp Claims

Bruce Burk

Sarasota, FL (WorkersCompensation.com) – With the elections in the rearview mirror, most people are done thinking about the polls for a while. Although in a few states, some poll workers are still busy completing recounts. Poll workers range in age from young to old. When a poll worker is injured on or after election day, work comp claims for the worker can raise several issues.

One issue that comes up: Whether or not there is an employee/employer relationship. One can make the argument that poll workers are not employees of the county they work in, but are instead appointed public officers not entitled to workers’ comp benefits.

Next issue: Whether or not poll workers can be categorized as volunteers. Some state statutes exempt volunteers of public entities from being excluded from workers’ compensation coverage. If the poll worker is paid for their work, or not, also has a large factor in determining coverage.

The next issue is how you calculate the average weekly wage of a poll worker. Average weekly wage is typically calculated using the weeks prior to the date of accident. However, poll workers are hired most of the time to only work one day and typically have no prior earnings other than perhaps one day of training. Usually when there are no prior earnings, you would look to their contract of hire. That might not make sense either, because their contract of hire is only for one instance and does not represent an amount of future earnings. That leaves the minimum comp rate, which is arguably the best way to come up with their earnings.

What happens, however, if the poll worker is injured during training prior to being paid or even working at the polls? One could argue that in this instance, there is a spectrum between being a volunteer and employee, and until the poll worker completed training they have not risen to the level of being employee. On the other hand, if it is the injury itself that caused the poll worker to be absent from the polls, then that should count for coverage.

Another issue arises with determined course and scope of employment: The premises doctrine says that typically an injury will be in the course and scope of employment if an employee is injured on the premises of the employer. But, what exactly is the premises of the employer for a poll worker? Polls are held in a variety of locations such as schools, community centers, and churches. These arguably are not the premises of the employer but is merely a space used by the employer on a temporary basis. Moreover, poll workers sometimes have to carry the poll results to other locations such as a library or police station. That is arguably also not the premises of the employer. Training is held for poll workers at a variety of locations and the same problems arise.

There is somewhat of a public policy position here leaning toward covering poll workers under the workers’ compensation system. The opposite position would be to allow poll workers to sue the school, church, or community center where the polling took place under a theory of negligence. Not covering poll workers under workers’ compensation could discourage centers from participating in the polls for fear of liability.

There are many poll workers who are in advanced ages. In these instances, issues arise not with compensability, but with disputes over medical causation regarding whether the accident is the major contributing cause of the need for treatment as opposed to prior injuries or degenerative issues.

As we speak, poll workers are still working in a variety of states trying to recount votes to determine Senate and Governors’ races. These recounts are the subject of election-related lawsuits and we will have to wait and see if any litigation arises on the workers’ comp side for these poll workers.

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