Workers the Fund’s Act does not cover

It is the crossing of two articles of Act 45-1935: Article 36, which defines who is a "worker" or "employee" and whom it expressly excludes, and Article 14, which says what happens with the accidents of those not subject to the Act.

This guide is for whoever suspects their work falls in one of Article 36’s three exclusions, and for beneficiaries when the accident ended in death. If your work is covered but your employer failed to insure, your case is a different one: the uninsured-employer guide handles that.

• Falling outside Article 36’s definition of "worker" or "employee" through one of its three express exclusions.Verified against the official source
• For the first exclusion, that the work be accidental or casual in character and also not comprised within the employer’s business, industry, profession or occupation: the article asks for both.Verified against the official source
• For the damages action, filing it before the Court of First Instance courtroom of the place where the accident occurred.Verified against the official source

• Evidence of the work relationship and its nature: whether it was casual, whether it was in your home, whether the employer was exempt. Which side of the Act you fall on depends on that.
• Evidence of the accident and of the damages: in the civil route they must be proven, unlike in the Fund’s system.

1. 1

   Step 1: First see whether you are in or out

   Article 36 defines "employee" as any person in the service of any individual, partnership or corporation that regularly employs employees covered by the Act, and adds the exclusion: "expressly excluded are employees whose work is accidental or casual in character and is not comprised within the business, industry, profession or occupation, those who work in their own homes, and those of employers exempt from the obligations of this Act". The same article clarifies that the word includes every worker employed in any manufacturing, commercial or agricultural establishment or occupation by a natural or juridical person for some compensation, and by the Government or any of its instrumentalities.

2. 2

   Step 2: The first exclusion asks for two things, not one

   Read it slowly: the work must be accidental or casual in character "and" not comprised within the business, industry, profession or occupation. A one-off job that is part of the employer’s business fails the second half. And what constitutes accidental or casual work is not defined by the Act: Article 36 itself says the Industrial Commission will determine it by regulation approved by the Governor, taking into account the kind of work, the cost it represents to the employer, the duration and, chiefly, its relation to the employer’s business or industry. We did not read that regulation, so this guide does not tell you what it says.

3. 3

   Step 3: If you are outside, the employer answers as if the Act did not exist

   Article 14 says it unambiguously: "In all cases of illness, injury or death occurring to workers not subject to the provisions of this Act, the liability of that employer is and shall be the same as if this Act did not exist", independent of any action the injured worker may have under Article 1802 of the Civil Code, and the action is brought before the Court of First Instance courtroom of the place where the accident occurred. The compilation cites that article as renumbered in 1930, with its L.P.R.A. section; we did not read the 2020 Civil Code for this guide, so we report the Act’s citation as it stands and do not tell you what number corresponds today.

4. 4

   Step 4: Nothing takes away your right to claim damages

   Article 14’s second paragraph shuts the door on the opposite reading: "In such cases, nothing contained in this Act shall be construed as depriving the worker or their beneficiaries in case of death of their right to claim and obtain damages from their employer, in accordance with the injuries suffered". The exclusivity of remedy that protects the insured employer belongs to the other side of the Act; it does not apply here.

5. 5

   Step 5: Attachment without bond, with the fees included

   The third paragraph is the practical part: "In these damages actions, and as if this Act were not applicable, the worker or their beneficiaries shall be entitled, without posting bond, to attach the employer’s property for the amount the court determines to secure payment of the judgment rendered, and such attachment shall include the attorney’s fees to be fixed by the court". Not having to post bond is exactly what usually stops an injured worker, and the Act removes it.

6. 6

   Step 6: Do not confuse this with the employer who failed to insure

   They are two different situations leading to different places. Here the worker is outside the Act by definition. In the other case the worker is covered, but the employer did not buy the policy: the Act handles that in its own articles, with a criminal penalty included, and the Fund steps in anyway. If you are not sure which is your case, that guide and this one link to each other for that reason.

In court, not at the Fund: Article 14 says the action is brought before the Court of First Instance courtroom of the place where the accident occurred. If you are unsure whether you are inside or outside the Act, the Fund and the Industrial Commission are the bodies that determine coverage.

• Reading the first exclusion halfway: the Act requires the work to be casual and also outside the employer’s business.
• Accepting the employer’s own decision that you are not covered: coverage is determined by the Fund’s system.
• Believing that falling outside the Act leaves you without a remedy, when Article 14 preserves the damages action against the employer.
• Not using the bond-free attachment the same article authorises, with attorney’s fees included.
• Filing the action in any courtroom: the Act names the one for the place where the accident occurred.
• Confusing this case with that of the employer who failed to insure, which has its own guide and its own consequence.

These are the government pages this guide is based on.

• Corporación del Fondo del Seguro del Estado (CFSE)

  Fondo del Seguro del Estado

  bvirtualogp.pr.gov