To collect workers’ compensation in Maryland, an injured worker must constitute a “covered employee” within the meaning of the Workers’ Compensation Act. Further, in addition to the presumption outlined in LE § 9-202 (which focuses on the relationship between the employer and employee), an injured worker must also qualify for workers’ compensation benefits under LE § 9-203 (which focuses on where an injury occurs).
Section 9–203(a) provides three methods by which an individual qualifies as a “covered employee”: 1) when working for an employer “in this State,” § 9–203(a)(1); 2) when working for an employer “outside of this State on a casual, incidental, or occasional basis if the employer regularly employs the individual within this State,” § 9–203(a)(2); or, 3) when working for an employer “wholly outside the United States under a contract of employment made in this State for the work to be done wholly outside of the United States,” § 9–203(a)(3).
Pro-Football, Inc. v. McCants, 428 Md. 270, 277-78 (2012).
Generally, applying subsections (a)(1) and (a)(3) of LE § 9-203 is relatively straightforward. On the other hand, subsection (a)(2) is often the subject of more litigation, as its provisions are more apt to interpretation. However, the Court of Appeals of Maryland has set forth the appropriate “test” for LE § 9-203(a)(2):
[W]e have consistently held that the decision in any case was to be determined by its peculiar facts and circumstances. What has resulted has been the development of an elastic test for determining whether an employee is “casual” or “regular,” with the factors to be considered being the nature of the employer’s work, the scope and purpose of the hiring and the duration of the employment, whether it is occasional, incidental, accidental, or a usual concomitant of the employer’s business.
Other factors that may inform the determination include “whether the employment arrangement contemplat[ed] a regular presence in the particular jurisdiction,” “the consistency of the claimant’s work in the particular jurisdiction,” and “representations made by the employer as to where the claimant would be working.”
McCants, 428 Md. at 283-84 (quoting McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 588-87 (2003); Hodgson v. Flippo Const. Co., 164 Md. App. 263, 269 (2005)).
NFL Workers’ Compensation
A recent example of what constitutes a covered employee under LE § 9-203(a)(2) can be found in the case of Pro-Football, Inc. v. McCants, supra. There, the Claimant was a professional football player for the Washington Redskins who sought workers’ compensation in Maryland for injuries incurred during the course of his employment. Specifically, the Claimant sought compensation for injuries occurring in Maryland during Redskins’ home games, in New York and Pennsylvania during Redskins’ away games, and in Virginia at the Redskins’ practice facility.
The questions for the Court were twofold. First, was the Claimant “regularly employed in the State” while playing in the Redskins’ home games in Maryland? Relatedly, did the Claimant’s “practice time in Virginia and participation in games outside of Maryland [constitute] work ‘outside of this State on a casual, incidental, or occasional basis[?]’” McCants, 428 Md. at 278; see also id. at 284 (“Put more simply, was [the Claimant] ‘regularly working’ when he was practicing in Virginia or when he was playing games in Maryland?”).
The Claimant argued that the main purpose of his employment with the Redskins was “to play in NFL games, the bulk of which took place in Landover, Maryland.” Therefore, he was “regularly employed in the State,” and “any NFL game played outside of Maryland was merely occasional within the meaning of § 9–203(a)(2).” Further, because the main purpose of his employment was to play in actual games, the Claimant viewed his practice time in Virginia as “merely preparatory to performing in those NFL games, and therefore incidental, to his work.” Id. at 278.
Conversely, the Redskins argued that the vast majority of the Claimant’s employment occurred in Virginia, with the Claimant’s “connection to Maryland consist[ing] of ‘riding on the bus and appearing at FedEx Field possibly eight times per year.” Thus, in light of its “sheer bulk,” the Redskins contended that the Claimant’s “time in Virginia could not be characterized as ‘incidental’ under § 9–203(a)(2).” Id. at 278-79.
Prior to reaching Maryland’s highest court, both the WCC and circuit court denied coverage on the basis that the Claimant “was not regularly employed in Maryland because the scope of his employment required his presence in Maryland ‘eight times a year’ and in Virginia ‘several hundred days a year.’” Id. at 279. These decisions, however, were subsequently overturned in the Court of Special Appeals. The intermediate appellate court determined that “practicing is incidental to the main purpose of employment: to play in football games.’” Id.
Following a grant of certiorari, the Court of Appeals affirmed the intermediate appellate court and also held that the Claimant was “regularly employed” while playing for the Redskins during their home games in Maryland. McCants, 428 Md. at 286 (“The purpose of a football player’s employment with a professional football team is to play in professional football games. It is not . . . to practice.”) (emphasis added). As such, the injuries sustained in Maryland were compensable. Further, because the Claimant was regularly employed while playing in the Redskins’ home games, “his presence in other jurisdictions for practice or playing purposes necessarily was merely incidental or occasional, respectively.” Id. at 287. Accordingly, the injuries sustained at practice in Virginia, as well as during the away games in New York and Pennsylvania, were also compensable under § 9–203(a)(2) of the Maryland Workers’ Compensation Act.
In sum, LE § 9–203(a) focus on where an injury occurs. Even if an employee gets hurt outside of the State of Maryland, he or she may still be entitled to workers’ compensation benefits if the employee is “regularly employed in the State,” and if the work outside of Maryland is “on a casual, incidental, or occasional basis.” LE § 9–203(a)(2). This inquiry is highly fact-driven, as evidenced by the case of Pro-Football, Inc. v. McCants. There, an employee was deemed to be regularly employed in Maryland in light of the underlying purpose of his employment, despite the fact his job required his presence in other jurisdictions much more than in Maryland.