Is a nanny entitled to workers’ compensation benefits?

As a mom with similarly situated friends and an attorney representing injured workers the topic of workers’ compensation and household employees inevitably comes up. You may be an employer wondering if you need workers’ compensation coverage for your nanny/babysitter or housecleaner. Or perhaps, you are a household employee who has suffered an injury and wants to know whether you can file a claim for workers’ compensation benefits.

Unfortunately, this isn’t a straight yes or no answer.

First, we look to the California Labor Code section 3351(d), which defines residential dwelling employees. Per the code,

“Except as provided in subdivision (h) of Section 3352, any person employed by the owner or occupant of a residential swelling whose duties are incidental to the ownership, maintenance, or use of the swelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”

We can also look to the Industrial Welfare Commission (IWC) which defines Household Occupations as: “All services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder”. Examples include gardeners, house cleaners, tutors and companions.

California Department of Industrial Relations, Industrial Welfare Commission, Order No. 15-2001 defines “personal attendant” to include babysitters and “any person employed by a private householder or by any third party employer recognized in the healthcare industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, mental deficiency needs supervision.” This would include your babysitters, nannies, and personal care attendants for elders or the disabled.

Ok, so after reading the above, you can determine whether you or the person you hired falls into the general category of “employee”. Now we need to determine whether you or your employee is excluded as an employee from Workers’ Compensation.

California Labor Code Section 3352(h) excludes from its definition of “employee” as follows:

“Any person defined in (d) of Section 3351 was employed by the employer to be held liable for less than 52 hours during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411… or who earned less than $100 in wages from the employer during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411 . . .”

Has the person worked 52 hours or more during the 90 days immediately prior to the date of injury, or for a cumulative trauma injury, during the 90 calendar days immediately preceding the date of last employment? If no, that person is not an employee.

Has the person earned less than $100 in wages from the employer during the 90 days immediately prior to the date of injury, or in the case of a cumulative trauma injury, during the 90 dates immediately preceding the date of last employment? If no, that person is not an employee.

If you answered “yes” to the above questions and are a household worker, it’s likely you qualify to as an employee and may file a workers’ compensation claim if you have been injured through work.

If you answered “yes” to the above questions and are an employer, first contact your homeowner’s or umbrella insurance carrier to determine whether you have existing coverage for domestic employees. If you do not, inquire about a “rider” policy. Or, you can purchase a freestanding policy through an insurance company or the State Compensation Insurance Fund.

DISCLAIMER: This post provides general information only and is not intended to serve as legal advice.