A three-person office and a one-person construction business may have very different workers’ compensation obligations in Florida. The rules depend on the work a business does, how many people count as employees, and whether an owner has a valid exemption.

Generally, construction employers must secure workers’ compensation coverage with one or more employees, non-construction employers with four or more, and agricultural employers when they reach separate thresholds for regular or seasonal workers. State and local government employers must also provide coverage. If you were hurt at work, the first step is to find out which rule applies to your employer.

Key Takeaways About Which Employers Must Carry Workers’ Comp Coverage in Florida

• Construction employers generally need coverage with one or more employees; qualifying owners and construction independent contractors can count.
• Non-construction employers generally need coverage with four or more employees, including full-time and part-time workers.
• Agricultural employers have separate thresholds involving six regular employees or 12 seasonal workers who meet the applicable time limits.
• An exemption applies to a qualifying corporate officer or LLC member individually. It does not exempt the entire business.
• If an employer fails to secure required coverage, an injured worker may have a choice between seeking workers’ compensation benefits and bringing a damages claim.

Which Employers Must Carry Workers’ Comp Coverage in Florida?

Florida’s Department of Financial Services sets out the general requirements by industry:

• Construction: One or more employees.
• Non-construction: Four or more employees.
• Agriculture: Agricultural employers generally need coverage with six regular employees or when they employ 12 seasonal workers and the seasonal work exceeds the applicable 30-day or 45-day limit.
• State and local government: Coverage is required.

These numbers are a starting point. Whether a person counts as an employee can depend on the type of business, the person’s role, and Florida’s rules for owners and independent contractors. Full-time and part-time workers can both count toward the non-construction threshold.

Federal employees generally fall under a separate federal workers’ compensation system.

Who Counts as an Employee Under Florida’s Coverage Rules?

A paycheck, contract, or 1099 form does not settle this question by itself. Florida Statutes § 440.02 defines who counts as an employee for workers’ compensation purposes and treats some workers differently depending on whether the business is in construction.

In a non-construction business, a sole proprietor or partner generally does not count as an employee unless they elect to be included under Florida’s rules. A genuine independent contractor in a non-construction business also generally does not count. Florida law sets out criteria for determining that status, so calling someone an independent contractor is not enough.

Construction has broader rules. The statute generally includes construction sole proprietors, partners, and independent contractors within its definition of employee. It also addresses people paid by a construction contractor as subcontractors. This means a construction business should not assume it falls below the one-person threshold simply because its workers receive 1099 forms or because the owner performs the work.

Corporate officers and LLC members can count toward the applicable threshold. Some can obtain a valid exemption that excludes them individually from workers’ compensation coverage. According to Florida DFS, an exemption belongs to the qualifying person, not the business. Other employees may still need coverage.

Construction Contractors and Subcontractors Have Additional Duties

Florida generally requires construction employers to secure coverage when they have one or more employees. The state identifies construction trades under Florida Administrative Code Rule 69L-6.021. A business covered by the construction rule cannot use the four-employee threshold for non-construction businesses.

A contractor must also require evidence of a subcontractor’s workers’ compensation insurance. If the subcontractor has not secured required coverage, the contractor may become responsible for benefits owed to the subcontractor’s employees. These duties are set out in Florida Statutes § 440.10.

For an injured construction worker, that means the company issuing their paycheck may not be the only business whose coverage matters.

What If a Small Employer Is Not Required to Carry Coverage?

Some small non-construction employers can legally operate without workers’ compensation coverage. That does not mean every business with fewer than four people is exempt: construction, agriculture, and public employment have different rules, and the employee count must be determined correctly.

Under Florida Statutes § 440.055, an employer with fewer than four employees that is legally permitted to decline coverage and does so must post a clear written notice at each worksite. The notice must tell employees and others performing services at the worksite that they are not entitled to workers’ compensation benefits under Florida’s workers’ compensation law.

A business that is not required to secure coverage may still choose to do so. If you are unsure whether your employer has coverage, Florida DFS provides a coverage search.

What Happens If an Employer Fails to Secure Required Coverage?

An employer that is required to provide workers’ compensation must secure payment of benefits. Florida can take enforcement action when an employer fails to comply, including when it misclassifies workers or understates payroll to avoid its obligations. Florida Statutes § 440.107 addresses that enforcement authority.

The worker’s options matter just as much as the penalties facing the employer. Under Florida Statutes § 440.11(1)(a), an injured employee whose employer failed to secure required compensation may elect to claim workers’ compensation benefits or bring a damages action against the employer. Which course makes sense depends on the facts.

An employer’s statement that it “doesn’t have workers’ comp” does not explain whether the business was legally allowed to go without coverage. It also may not tell you whether another party on a construction project secured coverage or whether the employer uses an authorized self-insurance arrangement.

What Should You Do If Coverage Is Unclear?

Report the injury to your employer as soon as possible. Florida generally requires an employee to give notice within 30 days of the injury or its initial manifestation. The statute provides limited exceptions, including certain situations in which a medical opinion is needed to identify the injury’s connection to work.

You can also:

1. Ask your employer for its workers’ compensation carrier or coverage information.
2. Search for your employer’s coverage through Florida DFS.
3. Keep copies of schedules, pay records, contracts, messages, and documents showing who directed your work.
4. Save medical records and any correspondence about the injury.
5. Contact Florida’s Employee Assistance and Ombudsman Office if your employer will not report the injury or provide insurance information.

These steps can help establish both what happened and which business may be responsible for a claim.

Frequently Asked Questions

Does a business with only three employees ever need workers’ comp in Florida?

Yes. A construction employer generally must secure coverage with one or more employees. The four-employee threshold generally applies to non-construction businesses, and agriculture has separate rules.

Can a small employer buy workers’ comp even when the law does not require it?

Yes. Falling below a mandatory coverage threshold does not prevent an employer from choosing to secure workers’ compensation coverage.

Does an owner’s exemption mean the business has no workers’ comp obligations?

No. A valid exemption excludes the qualifying corporate officer or LLC member individually. The business may still be required to provide coverage for other employees.

How can I check my employer's coverage?

Ask for the employer’s coverage information and use Florida DFS’s coverage search. If you cannot get the information or the result does not make sense, the state’s Employee Assistance and Ombudsman Office can help you investigate.

Brandon J. Broderick, Attorney at Law Can Help You Understand Your Options

Hearing that your employer “doesn’t have workers’ comp” can leave you wondering who will pay for treatment and missed work. The answer depends on why coverage is missing, how Florida classifies the business and its workers, and whether another party may be responsible.

Brandon J. Broderick, Attorney at Law can review those details with you and explain the options that may apply after your injury. Contact us today.