Policyholder

Notice*

It has come to the attention of the Tennessee Bureau of Workers' Compensation and the

Tennessee Department of Commerce and Insurance that there is some confusion regarding

exemptions for workers' compensation policies on commercial construction projects.

Since 2011, Tennessee law has stated that on a commercial construction project a maximum of

three (3) Construction Service Providers' (CSP's) may be exempt for the duration of the project.

This means that only three total individuals may be exempt, which would include any of the

General Contractor's exempted CSP's.

Effective January I, 2021, the Basic Manual for Workers' Compensation and Employers

Liability Insurance is being amended to clarify the proper rating basis for the coverage being

afforded. The statutory basis for the proper rating has not changed.

Therefore, even if a CSP has a valid exemption on the registry, that CSP's exposure on

"commercial construction projects" as defined in Tenn. Code Ann.§ 50-6-901(3), is chargeable

on that CSP's own policy unless the general contractor designates the individual CSP as one of

up to three (3) construction service providers performing "direct labor", as defined in Tenn.

Code Ann.§ 50-6-901(7) and per the requirements of Tenn. Code Ann.§ 50-6-914(b)(2)(A-C).

In instances where the exempt CSP performs both residential and commercial work, the

allocation of chargeable payroll between nonexempt commercial construction projects and all

other construction projects will be determined by the formula found in the Basic Manual for

Workers' Compensation and Employers Liability Insurance Rule 2-E-1-b or Rule 2-E-3, as

applicable.

Classifications 5604 and 5606 are not considered direct laborers and therefore are exempt on a

commercial construction project, if they maintain a valid exemption on the exemption registry.

In order for the three (3) individuals on the commercial construction project to qualify for the

exemption, the General Contractor must:

(i) Notify each CSP in writing that the CSP has been "selected" as one of the three (3)

exempt CSP's; and

(ii) Maintain a list identifying each exempt CSP which must be produced at audit or

upon request by the state.

Please note: It will be your responsibility to maintain separate, verifiable records for commercial

and residential projects to provide at the time of audit.

The following are some example scenarios for your reference on how the above laws and rules

apply:

Example 1:

General contractor ABC has not elected any exemptions of its own. As part of a commercial

project, ABC hired 10 individuals performing direct labor work, who are all on the Exemption

Registry and all have workers' compensation coverage. On this project, ABC can select three of

these individuals to be exempt from premium charge. To do so, ABC must affirmatively notify, in

writing, each one selected along with maintaining a list of those selected for use at audit or per

request of the state. When auditing the individual Construction Service Provider's policies, who all

have excluded themselves, only the three with the written notifications from ABC, can be excluded

from a premium charge for this particular commercial job despite an exclusion endorsement being

listed on their individual policy.

Example 2:

General contractor ABC has three officers, all of whom have elected to be exempt from coverage,

all are actively perfonning direct labor and have been designated in writing to be exempt from the

project. ABC also hires 10 individuals performing direct labor duties, are listed on the Exemption

Registry and with workers' compensation coverage. In this situation, none of the individuals can be

designated by ABC as exempt because their three officers perfonn direct labor and are already

exempt for the three individuals allowed. When auditing the individual Construction Service

Provider's policies, who all have excluded themselves, all would have to be included for this

commercial job.

Example 3:

General contractor ABC has three officers, all of whom have elected to be exempt from coverage

and are on the Exemption Registry. One officer only works in the office, another is an executive

supervisor or foreman (code 5606 or code 5604), while the last performs direct labor on the

commercial project and has been designated in writing to be exempt from the project. ABC also

hires 10 individuals performing direct labor duties, are listed on the Exemption Registry and with

workers' compensation coverage. In this situation, two of the individuals can be designated by

ABC, in writing, as exempt to arrive at the three individuals allowed. When auditing the individual

Construction Service Provider's policies, who all have excluded themselves, only the two who

received the exemption letter in writing from ABC would be excluded from a premium charge. The

remaining eight, without letters from ABC, would have to be included for this commercial job on

their individual policy

If you have any questions on this notice, please contact your insurance agent. You can also reach

us at (800) 653-7893 or email us at I.\1S@LibertyMutual.com.