Thursday, November 12, 2009

Workers Compensation

“Due to the criminalization of sex industry work, we are not protected by worker’s insurance for the actual duties we perform. People in other industries are covered if they contract diseases in the course of their work. If the sex industry was legitimized and able to truthfully apply for worker’s insurance, we could potentially be eligible for compensation when we get STI’s, like people with asbestos poisoning from insulating do.”

For the writing of this guide, we were unable to engage all the provincial worker’s insurance companies across Canada. However, we spoke at length with WorksafeBC and got some feedback from Manitoba and Saskatchewan.

British Columbia

It is required in British Columbia that all businesses that employ people must register with WorksafeBC. That includes strip clubs and massage parlours.

The Sex Industry

Massage parlour workers are covered for work related injuries under the Workers Compensation Act. This could include wage loss for time away from work due to work related injury.

WorkSafeBC classifies employers by industry groups. Services and occupations under these industry groups are described in the classification units. There is no “Sex Industry” or “Adult Entertainment Industry” classification, as yet.

Classification Unit 761021 Massage Parlour, Steam Bath, or Massage Services, includes escort services as part of its service description and escort is listed as an occupation. However, because it is illegal to own or operate a “bawdy house,” sexual services are not included in any classification unit descriptions.

If sexual services were acknowledged, it is possible that business owners may be required to provide Hep B vaccinations to workers who come in close contact with their patrons. The requirements for vaccination are under section 6.39 of the Occupational Health and Safety Regulation. The section states:

6.39 Vaccination
(1) An employer must offer vaccination against hepatitis B virus to all workers who are at risk of occupational exposure to that virus.
(2) If the Communicable Disease Control Immunization Program Manual issued by the BC Centre for Disease Control, as amended from time to time, lists a vaccine that protects against infection by a biological agent that is designated as a hazardous substance in section 5.1.1, the employer must offer the vaccination to all workers who are at risk of occupational exposure to that biological agent.
(3) Vaccinations offered under subsections (1) and (2) must be provided without cost to workers.

“Occupational exposure” is defined under section 6.33 as “reasonably anticipated contact with a biological agent, that is designated as a hazardous substance in section 5.1.1, resulting from the performance of a worker's duties.” Biological agents include blood, semen, urine, and feces.

If you work at a massage parlour and you suffer from a work related injury, you can make a claim. (Even if an employer is not registered, if they are in fact an employer under the Act, their workers are protected by the Act, and so can make a claim.) If a patron assaults you, you can make a claim but you may need to report the incident to police to be eligible for compensation.

Once you’ve made a claim, it is reviewed on an individual basis to determine if you qualify for compensation. There is no guarantee that you will receive insurance benefits.

Exotic Dancers

Exotic dancers who work in strip clubs are eligible for workers' compensation benefits if they are injured while working in a club.

Self-Employed – Personal Optional Protection

A person in business who is considered independent or a labour contractor may be eligible for personal optional protection. Applicants are approved on an individual basis. To date and to our knowledge, no one has applied as an exotic dancer or escort in British Columbia.

An example of how this may or may not apply: an exotic dancer working in one club at a time, week to week, will most likely not be eligible for Personal Optional Protection; whereas, an exotic dancer who is working in more than one venue in a day or week – dancing in clubs, doing seminars, pole dance parties, seduction workshops, stags, etc – may be eligible for Personal Optional Protection as an independent operator.

Making a Claim

WorksafeBC has what they call a “no-fault” insurance program so that even if you took unnecessary risks in your work, you may still be covered for work related injury under the Act.

Business owners with WorksafeBC insurance are required to provide training and health and safety supplies to reduce the risks associated with your particular job. Claims can include but are not limited to: assault, injuries from performance, and contraction of a disease in the course of your work.

The business owners are required by WorksafeBC to do a risk assessment and reduce identified risks as much as possible. For instance, they may be required to provide security if your safety is at risk; pay for your Hep B vaccinations if you are at a high risk of exposure in your job; or provide conflict resolution training if you deal with confrontations in your work.

If you make a claim, you, your doctor, and the business you were employed by at the time of the claim, must submit a report to WorksafeBC. If your employer does not make a report, they will be contacted by WorksafeBC and asked for it.

If the business did not have procedures and training in place related to the risk that caused your claim, WorksafeBC could possibly penalize them. They may also require that your contractor/employer does another risk assessment and develops policies and procedures related to all risks.

WARNING: The employer's assessments (premiums) may also increase depending on the amount of the claim. For this reason, you could potentially be blacklisted or worse if you make an insurance claim on a business. You may feel you have to choose between Worksafe or “be safe” and being safe may be your best option.

A person can anonymously report an employer safety violation. A person cannot make an anonymous claim for their workplace injury.

For safety violations or workplace health concerns contact WorkSafeBC at 1-888-621-7233.

Manitoba

Manitoba does not have compulsory WCB coverage for athletes or entertainers. However, if you are deemed on an individual basis to be an independent contractor, you can apply for optional coverage.

Manitoba WCB will determine a person's status by examining a number of factors. For independent contractors, they use a "bona fide" business test. They look at the situation and ask a number of questions to determine whether the person is in fact operating a business.

Here is a copy a section of contractor policy that talks about the business test:

Determining Status as an Employer, Worker or Independent Contractor

General

When a person is in a traditional employment relationship (i.e., works set hours for one person and receives T4 income), it is easy to determine that the person is a worker. However, in some cases it is not obvious whether a person is a worker or an independent contractor because of the manner in which the relationship between the service provider and the principal is structured.

The WCB will consider the details of the relationship between the service provider and the principal in order to determine whether the service provider is a worker or an independent contractor. The status of the principal (i.e., whether or not he or she is an employer) will be determined by the status of the service provider.

Specific considerations

In making the determination, the WCB will look at all of the facts. The manner in which the parties characterize the relationship will be considered by the WCB but will not determine the matter. The factors that the WCB will consider in making this determination include:

  • Is the service provider paid T4 income or business income? A person receiving T4 income is likely a worker. Business income suggests independent contractor status.
  • Does the service provider work under the supervision and control of the principal? In other words, does the principal dictate specific hours of work and/or how a particular task is to be performed or is the service provider free to determine those matters on his or her own? The more control that is exercised by the principal, the more likely it is that the service provider is a worker.
  • Does the service provider perform work that is an integral part of the business of the principal? The more integral to the business the work performed is, the more likely that a service provider is a worker.
  • Does the service provider have significant financial investment in and responsibility over, the vehicles, tools and/or major pieces of equipment that he or she requires to perform the work? Financial investment in, and responsibility over, vehicles tools and equipment suggests independent contractor status.
  • Does the service provider take financial risk or have the possibility of increasing his or her profit by, for example, performing the work in a shorter period of time? Significant risk and the possibility of reward suggest independent contractor status.
  • Is the service provider hired for specific jobs or is the working relationship between the service provider and the principal continuous and on going? Being hired for a specific job suggests independent contractor status; having a continuous, on going relationship is more indicative of a worker.
  • Is the working relationship exclusive or does the service provider perform the same or similar work for a number of different people or entities? Provision of service to one person suggests that the service provider is a worker.
  • Is the service provider responsible to pay all business expenses and remit his or her own income tax, GST, etc? Responsibility for business expenses and taxes suggests independent contractor status.
No one factor is determinative of the matter. The relationship as a whole will be considered.

WCB looks at the whole picture, not at just one or two of the criteria and make the determination. If they decide that a person is an independent contractor, they can purchase coverage.

If a person does not appear to be independent, they will be considered a worker and the employer will be responsible for coverage.

Saskatchewan

Artists, entertainers, and performers are also excluded from coverage in Saskatchewan.

No comments:

Post a Comment