Longshore and Harbor Workers’ Compensation Act Status and Situs Tests

The Longshore and Harbor Workers’ Compensation Act (LHWCA) is a federal law and workers’ compensation program for specific types of maritime employees. The law differs from the Jones Act in that it is a workers’ compensation program and with regard to who qualifies for the benefits. While the Jones Act is exclusively for seamen, the LHWCA protects many of the maritime workers who don’t meet the definition of a seaman, but still contribute to the industry. Generally this law includes longshoremen and other workers in harbors and ports.

Another difference is that if you qualify under this program, you do not have to show that your employer was negligent in causing your accident. To qualify for LHWCA you must pass what are termed the status and situs tests, which indicate the nature of the work you do and where you do it. You must meet the requirements of each to qualify for this type of worker’s compensation from on-the-job injuries or illnesses. Just qualifying under one test is not enough to be guaranteed benefits under this law.

The Status Test

The status test for the LHWCA determines whether or not the nature of your job, the work that you do, qualifies you for compensation under this federal law. The important thing to be able to prove for the status test is that even though you are not a seaman, you do what qualifies as maritime work. Your work must include duties that contribute to the maritime nature of your employer’s business. You don’t have to do maritime work exclusively, but it must comprise at least a portion of your duties on the job.

The LHWCA qualification is fairly broad by this definition of status and covers a number of types of positions in the maritime industry. As the name of the law describes, all longshoremen and harbor workers qualify. These are the people whose work relates directly to maritime vessels and include ship repair workers, shipbuilders, shipbreakers, workers loading and unloading vessels, and even the truck drivers taking goods to or from ships and their mechanics. In other words, status means work contributing to the maritime industry, whatever the specific nature of that work is.

There are some types of workers in the harbor area who do not qualify according to the LHWCA status test. A maritime employer has some employees who are not actively engaged in maritime work or contributing to the maritime industry. These include secretarial and other office workers, anyone working in aquaculture, or shipbuilders and repairers of recreational vessels. Temporary workers may not qualify, even if they are doing maritime work, nor do workers with retail stores or recreational outfitters. Of course, captain and crew members also do not qualify because they are seamen and are covered by the Jones Act.

The Situs Test

The second test to determine qualification under the LHWCA is the situs test, which is a test of location of maritime work. As someone working in the harbor or docks, you may qualify under the status test, but if you can’t meet the criteria of the situs test, you won’t qualify for the LHWCA. The situs test states that you must work on, near, or adjacent to navigable water.

This means that your work must be conducted either on a ship or very close to it. Most workers doing maritime work on docks, on piers or wharves, in terminals, or in other areas used for building, repairing, breaking, or loading or unloading a ship, meet the qualifications for the situs test because this kind of work is typically done near the ships docked in the area. An exception may be if you work on a ship or parts of a ship that are kept in another location, far from the harbor area.

Of course, in the phrase, “on, near, or adjacent to navigable water,” the term near is vague rather than specific. Shipyards and harbors can be very large places and a qualified maritime worker might actually be far from the water by any standard definition of distance, while still doing qualified work. Based on previous court cases the general guideline is that one mile is the situs limit. If you are doing maritime work, but it is a mile or more from the water or the boundary of a shipyard or other similar working area, you probably won’t pass the situs test.

Amendments and Extensions to the LHWCA

The status and situs tests actually disqualify some types of maritime workers who would be left vulnerable to the expenses of injury or illness if not covered by some type of law or worker’s compensation program. To make sure all maritime workers get some kind of protection in the event of a workplace injury or death, the LHWCA was amended a few times to include extensions of coverage by these three laws:

• The Outer Continental Shelf Lands Act. The OCSLA is an extension to the LHWCA that expands the law to cover workers on offshore facilities, as long as they are working on the outer continental shelf of the U.S. This category includes people working on oil rigs and natural gas wells and who work on the outer continental shelf for exploration of oil and gas. They can’t qualify as seamen or harbor workers, so this law provides protection.
• The Defense Base Act. With this extension, civilian employees working with overseas military bases get coverage for workers’ compensation. These workers are civilians, do not work for the Department of Defense, and are typically outside contractors. They face risks as do other maritime workers, and so this act ensures that they get compensation if injured.
• The Nonappropriated Fund Instrumentalities Act. This extension covers the types of workers who go overseas to, in some way, boost the morale of troops serving in active duty. They are not members of the Armed Forces, but may work for post exchanges, social clubs, or recreational facilities used by the deployed military.

The LHWCA is an important piece of legislation because it provides maritime workers who are not seamen, those contributing to the smooth functioning of the maritime industry, with a workers’ compensation program. Without this law, these workers would have access only to state workers’ compensation, which typically provide less coverage. Because the maritime industry is often dangerous and the work is risk, more so than many other industries, it is important to provide these workers with a way to get adequate compensation for medical bills and other expenses.

If you have been injured in a maritime setting as a longshoreman or other type of harbor worker, you may qualify for LHWCA compensation. You may get temporary compensation to cover medical expenses or lost wages. In the event that you lose your life on the job or because of an injury or illness, your family will get financial benefits under this law.

To find out if you qualify and so that you understand all the rights to which you are entitled, find a qualified and experienced maritime lawyer to be on your side, to guide you through the process, and to be your advocate against your employer’s insurance company. With guidance and expertise you stand the best chance of getting all the compensation you deserve.