TITLE XXIII
LABOR

CHAPTER 281-A
WORKERS' COMPENSATION

Section 281-A:2

    281-A:2 Definitions. – Any word or phrase defined in this section shall have the same meaning throughout RSA 281-A, unless the context clearly requires otherwise:
    I. ""Call or volunteer firefighter'' means a firefighter who is not regularly employed by a fire department of any city, town or precinct in the state but who answers for duty only to fire alarms and who has been appointed by the fire department with which the firefighter serves.
    I-a. [Repealed.]
    I-b. ""Board'' means the compensation appeals board established in RSA 281-A:42-a.
    I-c. ""Blood'' means human blood, human blood components, and products made from human blood.
    I-d. ""Bloodborne disease'' means pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV) and human immunodeficiency virus (HIV).
    I-e. ""Critical exposure'' means contact of an employee's ruptured or broken skin or mucous membrane with a person's blood or body fluids, other than tears, saliva, or perspiration, of a magnitude that can result in transmission of bloodborne disease.
    II. ""Commissioner'' means the labor commissioner appointed as provided in RSA 273.
    III. ""Contractor'' means a person or organization which contracts with another to have work performed of a kind which is a regular and recurrent part of the work of the trade, business, occupation or profession of such person or organization performing the work.
    IV. ""Subcontractor'' means a person who contracts with a contractor to perform the work described in paragraph III.
    IV-a. ""Date of maximum medical improvement'' means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.
    V. ""Dependent'' means the employee's widow, widower, children, parents, persons in the direct line of ascent or descent, or next of kin, who were wholly or partially dependent, in fact, upon the earnings of the employee for support at the time of the injury. A common law wife or husband of the deceased and posthumous children shall fall within the meaning of this paragraph.
    V-a. ""Domestic'', ""domestic employee'', or ""domestic worker'' means a person performing domestic services in a private residence of the employer, where the employer is an individual, family, local college club, or local chapter of a college fraternity or sorority and not an agency or other entity engaged in the business of providing domestic workers to the public and the person is not defined as an independent contractor under RSA 281-A:2, VI(b).
    V-b. (a) ""Domestic labor'' or ""domestic services'' means the performance of such duties as housekeeping, childcare, gardening, handy person work, and serving as a companion or caregiver for children or others who are not physically or mentally infirm.
       (b) ""Domestic labor'' or ""domestic services'' shall also include the services rendered by paid roommates or live-in companions who provide fellowship, care, and protection for persons who because of advanced age, or physical or mental infirmity cannot care for their own needs, regardless of whether the paid roommate or companion is employed by an agency or entity other than the person using such services, but subject to the following limitations:
          (1) The services may encompass housekeeping duties provided such services do not exceed 20 percent of the total hours worked; and
          (2) The services do not include those relating to the care and protection of the aged and infirm that require and are performed by specially trained personnel such as registered or licensed practical nurses or similarly trained personnel.
    VI. (a) ""Employee'', with respect to private employment, means any person in the service of an employer subject to the provisions of this chapter under any express or implied, oral or written contract of hire except a railroad employee engaged in interstate commerce whose rights are governed by the Federal Employers' Liability Act. If they elect to be personally covered by this chapter, ""employee'' includes persons who regularly operate businesses or practice their trades, professions, or occupations, whether individually, or in partnership, or association with other persons, whether or not they hire others as employees.
       (b)(1) Subject to the preceding subparagraph, any person, other than a direct seller or qualified real estate broker or agent or real estate appraiser, or person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who performs services for pay for an employer, is presumed to be an employee. This presumption may be rebutted by proof that an individual meets all of the following criteria:
             (A) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
             (B) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.
             (C) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
             (D) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.
             (E) The person holds himself or herself out to be in business for himself or herself.
             (F) The person has continuing or recurring business liabilities or obligations.
             (G) The success or failure of the person's business depends on the relationship of business receipts to expenditures.
             (H) The person receives compensation for work or services performed and remuneration is not determined unilaterally by the hiring party.
             (I) The person is responsible in the first instance for the main expenses related to the service or work performed. However, this shall not prohibit the employer or person offering work from providing the supplies or materials necessary to perform the work.
             (J) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
             (K) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer's special requirements or are located on the employer's premises.
             (L) The person is not required to work exclusively for the employer.
          (2) For the purposes of this subparagraph, ""qualified real estate broker or agent'' means a person who is a licensed real estate broker or licensed real estate salesman duly licensed pursuant to RSA 331-A and whose remuneration as such is directly related to sales or other output including performance of services, rather than to the number of hours worked.
          (3) For the purposes of this subparagraph, ""direct seller'' means a person:
             (A) Engaged in selling or soliciting the sale of consumer products, services or intangibles to any buyer on a buy-sell basis, deposit-commission basis or any similar basis for resale by the buyer or any other person in the home or other than in a permanent retail establishment; or engaged in selling or soliciting the sale of consumer products, services, or intangibles in the home or otherwise than in a permanent retail establishment; and
             (B) Who receives substantially all remuneration as such in a direct relationship to sales or other output including the performance of services, rather than the number of hours worked and whose services are performed pursuant to a written contract with the person for whom the services are performed, which provides that the individual will not be treated as an employee for federal tax purposes. For purposes of this subparagraph a mortgage originator as defined by RSA 397-A:1, XVII who meets the conditions of this subparagraph shall be deemed a direct seller.
          (4) For the purposes of this subparagraph, ""real estate appraiser'' means a person who is a real estate appraiser and whose remuneration as such is by way of a fee and is directly related to services or other work product rather than to the number of hours worked.
       (c) Prima facie evidence that the criteria prescribed in subparagraphs (b)(1)(A)-(L) have been met may be established by a written agreement signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with each of the criteria. Nothing in this subparagraph shall require such an agreement to establish that the criteria have been met. If the commissioner finds that the employer's use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500; in addition, such employer shall be assessed a civil penalty of $100 per employee for each day of noncompliance. The fines shall be assessed from the first day of the infraction but not to exceed one year. Notwithstanding any provision of law to the contrary, any person with control or responsibility over decisions to disburse funds and salaries and who knowingly violates the provisions of this subparagraph shall be held personally liable for payments of fines. All funds collected under this subparagraph shall be continually appropriated and deposited into a nonlapsing workers' compensation fraud fund dedicated to the investigation and compliance activities required by this section and related sections pertaining to labor and insurance law. The commissioner of labor shall appoint as many individuals as necessary to carry out the department's responsibilities under this section.
    VII. (a) ""Employee'', with respect to public employment, means:
          (1) Any person in the service of an employer, as defined in RSA 281-A:2, IX, including members of the general court, under any express or implied voluntary contract of hire and every elected or appointed official or officer of the state or any political subdivision or agency thereof while performing official duties.
          (2) Any person who is a call firefighter or special police officer, volunteer or auxiliary member of a fire or police department, ambulance or rescue service, or the state police, whether paid or not paid. For the purposes of this chapter, such a person shall be deemed to be an employee of the political subdivision of the state in which the department is organized.
          (3) Any person who is a regularly enrolled volunteer member or trainee of the emergency management corps of this state as established under the state emergency management act. For the purposes of this chapter, such a person shall be deemed to be an employee of the state.
          (4) Any person who fights a forest or other type of fire and who is either voluntarily under the direction of those authorized to give direction in the fighting of fires or who is under statutory compulsion to fight fires pursuant to RSA 227-L:11 and 227-L:13, or RSA 154:7, 8, and 9. For the purposes of this chapter, such a person shall be deemed to be an employee of the state with respect to fires fought under the provisions of RSA 227-L and deemed to be an employee of the municipality in which the fire is fought with respect to fires fought under the provisions of RSA 154.
          (5) Any person who assists in a search for or an attempted rescue or rescue of another pursuant to RSA 206:26, XII, after January 1, 1982, and who is voluntarily under the direction of those authorized to give direction in searching for or attempting to rescue or rescuing another. A person who assists in the search for or attempted rescue or rescue of another shall, solely for the purposes of this chapter and not otherwise, be deemed to be an employee of the state with respect to such activity. Any payments required to be made as a result of this paragraph shall be a charge against the general fund.
          (6) In the absence of any mutual aid agreement or other similar written agreement that specifically addresses the issue of workers' compensation benefits, any person who acts as an agent to the department of health and human services or the department of safety by providing assistance in response to a specific public health or public safety incident. Such person shall be deemed an employee of the state for the purposes of this chapter. In order to be eligible for workers' compensation benefits under this chapter the person shall have been specifically designated in writing as an agent by the commissioner of the department of health and human services or the commissioner of the department of safety, or their respective designees, in accordance with the provisions of RSA 508:17-a. This subparagraph applies only to such designated agents who are not receiving compensation from either the department of health and human services or the department of safety, other than possible reimbursement for expenses actually incurred for such services, such as travel expenses, but who may be receiving compensation from his or her regular employer or from any other source.
          (7) Any member of the New Hampshire national guard while on state active duty.
          (8) Any person who is officially designated by the governing body of a political subdivision as a volunteer in a New Hampshire citizen corps local council program that is organized, recruited, trained, supervised, and has been activated by an authorized political subdivision employee or official acting in his or her capacity as the emergency management director of the political subdivision.
       (b) ""Employee,'' with respect to public employment shall not include any inmate of a county or state correctional facility who is, under RSA 651, required or allowed to work or perform services for which no significant remuneration is provided, any volunteer not covered under RSA 281-A:2, VII(a)(2) through (8), who performs services for which no significant remuneration is provided, or any participant performing community service work under a court order or the provisions of a court diversion program, or any person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities. ""Employee,'' with respect to public employment, shall include any person participating in a local welfare work program established under RSA 165:31; however, the local governing body may vote to make the provisions of this chapter not applicable to local welfare work program participants through guidelines adopted under RSA 165:1, II.
       (c) The provisions of RSA 281-A:2, VI(b)(1) through (4) and (c) shall also apply to this paragraph.
    VIII. ""Employer,'' with respect to private employment, means:
       (a) A person, partnership, association, corporation, or legal representative of a person, partnership, association or corporation who employs one or more persons whether in one or more trades, businesses, professions or occupations and whether in one or more locations. In determining the number of persons employed, there shall be included persons whose contract of employment was entered into outside the state if such persons are actually employed on work in this state. For the purpose of determining the number of persons employed, executive officers elected or appointed and empowered in accordance with the charter and bylaws of a corporation and limited liability company members and managers designated in accordance with a limited liability company agreement shall not be considered to be employees, except that any executive officers or limited liability company members and managers in excess of 3 shall be counted as employees and except that there shall be no such exclusion in determining employer status for the purposes of RSA 281-A:23-b (alternative work opportunities), RSA 281-A:25-a (reinstatement) and RSA 281-A:64 (safety).
       (b) Any other employer who may elect to accept the provisions of this chapter in accordance with RSA 281-A:3.
       (c) Except where the context specifically indicates otherwise, the term employer as used in paragraph VIII shall be deemed to include the employer's insurance carrier or any association or group providing self-insurance to a number of employers.
    IX. ""Employer'', with respect to public employment, means the state, any agency of the state, any county, city, town, school district, sewer district, drainage district, water district, public or quasi-public corporation, or any other political subdivision of any of these that has one or more employees subject to this chapter. Except where the context specifically indicates otherwise, the term employer as used in this paragraph shall be deemed to include the employer's insurance carrier or any association or group providing self-insurance to a number of employers.
    X. ""Farm'' means the operation of farm premises, and includes the planting, cultivating, producing, growing and harvesting of farming commodities thereon; the raising of livestock and poultry thereon; and any work performed as an incident to or in conjunction with such farm operations. It does not include the operations and activities of employers identified as florists, flower shops, and greenhouses.
    X-a. ""Gainful employment'' means employment which reasonably conforms with the employee's age, education, training, temperament and mental and physical capacity to adapt to other forms of labor than that to which the employee was accustomed.
    X-b. ""Homogeneous'' means of a similar kind or nature, or possessing similar qualities and attributes. A group or association of homogeneous employers shall mean employers who have similar trades, businesses, occupations, professions or functions.
    XI. ""Injury'' or ""personal injury'' as used in and covered by this chapter means accidental injury or death arising out of and in the course of employment, or any occupational disease or resulting death arising out of and in the course of employment, including disability due to radioactive properties or substances or exposure to ionizing radiation. ""Injury'' or ""personal injury'' shall not include diseases or death resulting from stress without physical manifestation. ""Injury'' or "" personal injury'' shall not include a mental injury if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer. No compensation shall be allowed to an employee for injury proximately caused by the employee's willful intention to injure himself or injure another. Conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable only if contributed to or aggravated or accelerated by the injury. Notwithstanding any law to the contrary, ""injury'' or ""personal injury'' shall not mean accidental injury, disease, or death resulting from participation in athletic/recreational activities, on or off premises, unless the employee reasonably expected, based on the employer's instruction or policy, that such participation was a condition of employment or was required for promotion, increased compensation, or continued employment.
    XII. ""Insurance carrier'' shall include any corporation licensed to sell insurance in this state from which an employer has obtained a workers' compensation insurance policy in accordance with the provisions of this chapter.
    XII-a. ""Intoxication'' means intoxication by alcohol or controlled drug as defined in RSA 318-B:1. This definition shall not include an employee's use of a controlled drug for which a prescription has been issued authorizing such drug to be dispensed to him, when the employee's use of the controlled drug is in accordance with the instructions for use of the controlled drug.
    XII-b. ""Health care provider'' as used in this chapter includes doctors, chiropractors, rehabilitation providers, health services as defined in RSA 151-C:2, XVIII, health care facilities as defined in RSA 151-C:2, XV-a, and health maintenance organizations as defined in RSA 151-C:2, XVI.
    XIII. ""Occupational disease'' means an injury arising out of and in the course of the employee's employment and due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment. It shall not include other diseases or death therefrom unless they are the direct result of an accidental injury arising out of or in the course of employment, nor shall it include either a disease which existed at commencement of the employment or a disease to which the last injurious exposure to its hazards occurred prior to August 31, 1947.
    XIV. ""Permanent physical or mental impairment'', as used in RSA 281-A:54, means any permanent condition that is congenital or due to injury or disease and that is of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining employment if the employee should become unemployed.
    XIV-a. ""Rehabilitation provider'' as used in this chapter includes any person certified as a vocational rehabilitation provider under RSA 281-A:68 or RSA 281-A:69 and who operates for the purpose of assisting in the rehabilitation of disabled persons through an integrated program of medical and other services which are provided under competent professional supervision.
    XV. ""Wages'' means, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, fuel or a similar advantage received from the employer and gratuities received in the course of employment from others than the employer; but ""wages'' shall not include any sum paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of the employment.

Source. 1988, 194:2. 1989, 204:2. 1990, 254:2-7. 1991, 376:2. 1992, 43:3. 1994, 3:25, 26, I; 267:1; 272:1; 351:1. 1995, 49:1, 2, eff. July 2, 1995; 205:2, eff. Aug. 11, 1995; 299:20, eff. Jan. 1, 1996; 301:1, 2, eff. Aug. 20, 1995. 1996, 213:1, eff. Aug. 9, 1996; 231:4, eff. Aug. 9, 1996. 1997, 163:1, eff. Aug. 8, 1997; 324:2, eff. June 23, 1997. 1999, 214:1, eff. Sept. 4, 1999. 2001, 47:1, eff. Aug. 10, 2001. 2005, 191:1, eff. Jan. 1, 2006. 2007, 231:2, eff. Aug. 24, 2007; 362:6-9, eff. Jan. 1, 2008. 2008, 95:1, 2, eff. Jan. 1, 2009.