If you are an employer and you have contracts with the government, then you might be curious about whether you always need to carry Defense Base Act coverage for your employees. Indeed, carrying certain types of coverage, like workers’ compensation coverage appropriate to satisfy the Defense Base Act can be costly when handling a government contract. Thus, the answer to the question of whether Defense Base Act coverage can be waived in certain circumstances is – it depends.
In this article, we are going to talk about the concept of a Defense Base Act (DBA) waiver. We will also give you a brief overview of when you might be able to obtain one and even give some insight into the special case of Guam, in which the Department of Labor just made some significant changes to the DBA waiver in effect there.
If, after reading this article, you have additional questions pertaining to your own personal circumstances, then we invite you to contact the DBA lawyers in Jacksonville, FL – RITE Law. Our number is (904) 500-RITE or you can fill out our contact form online. Remember, we provide a free case evaluation, so call today.
The Defense Base Act Waiver
As you likely already know, the DBA is a federal workers’ compensation law that falls under the Longshore and Harbor Workers’ Compensation Act (Longshore Act). The DBA provides workers’ compensation benefits to employees who are working outside of the continental United States, typically as non-military employees on an overseas military base, hence the name “Defense Base Act.”
The DBA requires that civilian employees working on U.S. military bases (and in other situations under the DBA) be covered by the DBA workers’ compensation benefits. However, that requirement can be waived in certain circumstances.
The Mechanics of the DBA Waiver
Federal DBA law specifically states that the head of any U.S. agency may recommend a waiver of the DBA, and “the Secretary of Labor, in the exercise of his discretion, may waive the application of the [DBA] with respect to any contract, subcontract, or subordinate contract, work location under such contracts, or classification of employees.”
In other words, if a government agency wishes to waive DBA protection for certain employees under a particular government contract, it can do so provided the Secretary of Labor agrees to do so. Typically, proper waiver requests are granted, yet there are some parameters on whether a waiver is permitted.
Limits on DBA Waivers, and the Special Case of Guam
DBA waivers normally do not apply to any employee who is:
1. A United States citizen,
2. Hired in the United States, or
3. A bona fide resident of the United States, regardless of nationality.
Although Guam is an unincorporated territory of the United States, the DBA was waived for any DBA-covered contracts and work on the United States military bases in Guam. That waiver covered both locals in Guam (who are U.S. citizens) and third-country nationals.
However, the Department of Labor has a longstanding policy that the DBA coverage cannot be waived for U.S. citizens. Accordingly, in May 2020, the Guam blanket waiver was changed. The Department of Labor issued a new waiver that gives DBA coverage to U.S. citizens in Guam (which includes all local Guamanians), and only waives coverage for third-country nationals.
The Primary Limit on Waivers
In addition to the considerations above, there is one very important limit on the use of a DBA waiver. That is that the DBA cannot be waived unless employees covered by the waiver have access to workers’ compensation benefits under local laws.
If a waiver is in place, yet employees do not have workers’ compensation coverage (or something like workers’ compensation coverage) under local law, then the DBA waiver is inoperative.
The key here is to make sure that employees if injured in connection with work on a federal contract overseas, have some workers’ compensation coverage. Thus, a valid DBA waiver will be rendered invalid if employees otherwise have no workers’ compensation options available to them.
What that means for employers working on a government contract, or employing people on a U.S. military base, is that the employer has the burden of ensuring that employees have local workers’ compensation coverage before it can obtain a valid DBA waiver.
Talk to a DBA Lawyer in Jacksonville for More Information on Waivers
At RITE Law, we started the firm for one reason – to help those in Florida and elsewhere have the resources of a firm that was “big enough to fight but small enough to care.” At Rudolph, Israel, Tucker & Ellis (RITE law), we have the resources and experience to go to trial when it is necessary, and we have the wisdom to advise you appropriately.
Expect lots of attention, passionate representation, and a healthy disdain for big insurance companies. We believe that leads to the best result possible. Unlike larger firms, your case isn’t handed to a paralegal or assistant to do the heavy lifting. The attorney you meet initially is the one who will be by your side every step of the way.
We also take pride in creating an atmosphere where every client is treated like family. Family members stick up for one another no matter what. You should expect nothing less from the RITE Law workers’ compensation attorneys in Jacksonville.
Without help from the RITE team, making your own personal injury claims can be very difficult. When you turn to our firm, we spring into action, making sure that every detail of your claim is addressed. Call us for help. Our number is (904) 500-RITE or you can fill out our contact form online. We provide a free case evaluation, so feel free to call us today.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not decide whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed, nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.