SSB 3175 (LSB 5737SC (2) 83)

SENATE FILE _____

BY  (PROPOSED COMMITTEE ON LABOR AND BUSINESS RELATIONS BILL BY CHAIRPERSON COURTNEY)

A BILL FOR

An Act requiring certain weekly workers’ compensation benefits to be calculated by including an employee’s overtime and premium pay, and to include an annual cost-of-living adjustment.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 85.36, Code 2009, is amended to read as follows:
   85.36  Basis of computation.
   1.  The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee’s employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar:
   1.  a.  In the case of an employee who is paid on a weekly pay period basis, the weekly gross earnings.
   2.  b.  In the case of an employee who is paid on a biweekly pay period basis, one-half of the biweekly gross earnings.
   3.  c.  In the case of an employee who is paid on a semimonthly pay period basis, the semimonthly gross earnings multiplied by twenty-four and subsequently divided by fifty-two.
   4.  d.  In the case of an employee who is paid on a monthly pay period basis, the monthly gross earnings multiplied by twelve and subsequently divided by fifty-two.
   5.  e.  In the case of an employee who is paid on a yearly pay period basis, the weekly earnings shall be the yearly earnings divided by fifty-two.
   6.  f.  In the case of an employee who is paid on a daily or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, including but not limited to overtime, shift differential pay but not including overtime or, and premium pay, of the employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. If the employee was absent from employment for reasons personal to the employee during part of the thirteen calendar weeks preceding the injury, the employee’s weekly earnings shall be the amount the employee would have earned had the employee worked when work was available to other employees of the employer in a similar occupation. A week which does not fairly reflect the employee’s customary earnings shall be replaced by the closest previous week with earnings that fairly represent the employee’s customary earnings.
   7.  g.  In the case of an employee who has been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury, the employee’s weekly earnings shall be computed under subsection 6 paragraph “f”, taking the earnings, including but not limited to overtime, shift differential pay but not including overtime or, and premium pay, for such purpose to be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. If the earnings of other employees cannot be determined, the employee’s weekly earnings shall be the average computed for the number of weeks the employee has been in the employ of the employer.
   h.  In the case of an employee injured in the course of performing as a professional athlete, the basis of compensation for weekly earnings shall be one-fiftieth of total earnings which the employee has earned from all employment for the previous twelve months prior to the injury.
   8.  2.  If at the time of the injury the hourly earnings have not been fixed or cannot be ascertained, the earnings for the purpose of calculating compensation shall be taken to be the usual earnings for similar services where such services are rendered by paid employees.
   9.  3.  If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.
   a.  In computing the compensation to be allowed a volunteer fire fighter, emergency medical care provider, reserve peace officer, volunteer ambulance driver, volunteer emergency rescue technician as defined in section 147A.1, or emergency medical technician trainee, the earnings as a fire fighter, emergency medical care provider, reserve peace officer, volunteer ambulance driver, volunteer emergency rescue technician, or emergency medical technician trainee shall be disregarded and the volunteer fire fighter, emergency medical care provider, reserve peace officer, volunteer ambulance driver, volunteer emergency rescue technician, or emergency medical technician trainee shall be paid an amount equal to the compensation the volunteer fire fighter, emergency medical care provider, reserve peace officer, volunteer ambulance driver, volunteer emergency rescue technician, or emergency medical technician trainee would be paid if injured in the normal course of the volunteer fire fighter’s, emergency medical care provider’s, reserve peace officer’s, volunteer ambulance driver’s, volunteer emergency rescue technician’s, or emergency medical technician trainee’s regular employment or an amount equal to one hundred and forty percent of the statewide average weekly wage, whichever is greater.
   b.  If the employee was an apprentice or trainee when injured, and it is established under normal conditions the employee’s earnings should be expected to increase during the period of disability, that fact may be considered in computing the employee’s weekly earnings.
   c.  If the employee was an inmate as defined in section 85.59, the inmate’s actual earnings shall be disregarded, and the weekly compensation rate shall be as set forth in section 85.59.
   10.  4.  If a wage, or method of calculating a wage, is used for the basis of the payment of a workers’ compensation insurance premium for a proprietor, partner, limited liability company member, limited liability partner, or officer of a corporation, the wage or the method of calculating the wage is determinative for purposes of computing the proprietor’s, partner’s, limited liability company member’s, limited liability partner’s, or officer’s weekly workers’ compensation benefit rate.
   11.  5.  In computing the compensation to be allowed an elected or appointed official, the official may choose either of the following payment options:
   a.  The official shall be paid an amount of compensation based on the official’s weekly earnings as an elected or appointed official.
   b.  The earnings of the official as an elected or appointed official shall be disregarded and the official shall be paid an amount equal to one hundred forty percent of the statewide average weekly wage.
   12.  In the case of an employee injured in the course of performing as a professional athlete, the basis of compensation for weekly earnings shall be one-fiftieth of total earnings which the employee has earned from all employment for the previous twelve months prior to the injury.
   6.  The basis of compensation for permanent total disability benefits or death benefits shall increase on January 1 of each year for compensation which becomes due that year by a percentage equal to the cost-of-living adjustment made to disability benefits payable by the United States social security administration in December of the immediately preceding year.
    Sec. 2.  Section 85.61, subsection 3, Code 2009, is amended to read as follows:
   3.  “Gross earnings” means recurring payments by employer to the employee for employment, before any authorized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, and the employer’s contribution for welfare benefits.
EXPLANATION
   This bill requires certain weekly workers’ compensation benefits to be calculated by including an employee’s overtime and premium pay, and to include an annual cost-of-living adjustment.
   The bill amends Code section 85.36 to require the calculation of the amount of weekly workers’ compensation benefits to include, not exclude, an employee’s earnings for overtime and premium pay. A coordinating amendment is made to Code section 85.61.
   The bill also amends Code section 85.36 to require the basis of compensation for weekly workers’ compensation benefits payable for permanent total disability benefits or death benefits to increase on January 1 each year for compensation which becomes due that year, by a percentage equal to the cost-of-living adjustment made to disability benefits payable by the United States social security administration in December of the immediately preceding year.
   Technical corrections are also made to Code section 85.36 to remove an unnumbered paragraph and for purposes of clarity.