                                 CODE OF VIRGINIA

DEFINITIONS (§ 65.2-101)

As used in this title:
		&#8220;Average weekly wage&#8221; means:

1. a. The earnings of the injured employee in the employment in which he was
working at the time of the injury during the period of 52 weeks immediately
preceding the date of the injury, divided by 52; but if the injured employee
lost more than seven consecutive calendar days during such period, although not
in the same week, then the earnings for the remainder of the 52 weeks shall be
divided by the number of weeks remaining after the time so lost has been
deducted. When the employment prior to the injury extended over a period of less
than 52 weeks, the method of dividing the earnings during that period by the
number of weeks and parts thereof during which the employee earned wages shall
be followed, provided that results fair and just to both parties will be thereby
obtained. When, by reason of a shortness of time during which the employee has
been in the employment of his employer or the casual nature or terms of his
employment, it is impractical to compute the average weekly wages as above
defined, regard shall be had to the average weekly amount which during the 52
weeks previous to the injury was being earned by a person of the same grade and
character employed in the same class of employment in the same locality or
community.
			b. When for exceptional reasons the foregoing would be unfair either to the
employer or employee, such other method of computing average weekly wages may be
resorted to as will most nearly approximate the amount which the injured
employee would be earning were it not for the injury.

2. Whenever allowances of any character made to an employee in lieu of wages are
a specified part of the wage contract, they shall be deemed a part of his
earnings. For the purpose of this title, the average weekly wage of the members
of the Virginia National Guard and the Virginia Defense Force, registered
members on duty or in training of the United States Civil Defense Corps of the
Commonwealth, volunteer firefighters engaged in firefighting activities under
the supervision and control of the Department of Forestry, and forest wardens
shall be deemed to be such amount as will entitle them to the maximum
compensation payable under this title; however, any award entered under the
provisions of this title on behalf of members of the National Guard or their
dependents, or registered members on duty or in training of the United States
Civil Defense Corps of the Commonwealth or their dependents, shall be subject to
credit for benefits paid them under existing or future federal law on account of
injury or occupational disease covered by the provisions of this title.

3. Whenever volunteer firefighters, volunteer emergency medical services
personnel, volunteer law-enforcement chaplains, auxiliary or reserve police,
auxiliary or reserve deputy sheriffs, members of volunteer search and rescue
organizations, volunteer members of community emergency response teams, and
volunteer members of medical reserve corps are deemed employees under this
title, their average weekly wage shall be deemed sufficient to produce the
minimum compensation provided by this title for injured workers or their
dependents. For the purposes of workers&#8217; compensation insurance premium
calculations, the monthly payroll for each volunteer firefighter or volunteer
who is an individual who meets the definition of &#8220;emergency medical
services personnel&#8221; in &#xA7; 32.1-111.1 shall be deemed to be $300.

4. The average weekly wage of persons, other than those covered in subdivision 3
of this definition, who respond to a hazardous materials incident at the request
of the Department of Emergency Management shall be based upon the earnings of
such persons from their primary employers.
			&#8220;Award&#8221; means the grant or denial of benefits or other relief
under this title or any rule adopted pursuant thereto.
			&#8220;Change in condition&#8221; means a change in physical condition of the
employee as well as any change in the conditions under which compensation was
awarded, suspended, or terminated which would affect the right to, amount of, or
duration of compensation.
			&#8220;Client company&#8221; means any person that enters into an agreement
for professional employer services with a professional employer organization.
			&#8220;Coemployee&#8221; means an employee performing services pursuant to an
agreement for professional employer services between a client company and a
professional employer organization.
			&#8220;Commission&#8221; means the Virginia Workers&#8217; Compensation
Commission as well as its former designation as the Virginia Industrial
Commission.
			&#8220;Employee&#8221; means:

1. a. Every person, including aliens and minors, in the service of another under
any contract of hire or apprenticeship, written or implied, whether lawfully or
unlawfully employed, except (i) one whose employment is not in the usual course
of the trade, business, occupation or profession of the employer or (ii) as
otherwise provided in subdivision 2 of this definition.
			b. Any apprentice, trainee, or retrainee who is regularly employed while
receiving training or instruction outside of regular working hours and off the
job, so long as the training or instruction is related to his employment and is
authorized by his employer.
			c. Members of the Virginia National Guard, whether on duty in a paid or
unpaid status or when performing voluntary service to their unit in a nonduty
status at the request of their commander.
			Income benefits for members of the National Guard shall be terminated when
they are able to return to their customary civilian employment or
self-employment. If they are neither employed nor self-employed, those benefits
shall terminate when they are able to return to their military duties. If a
member of the National Guard who is fit to return to his customary civilian
employment or self-employment remains unable to perform his military duties and
thereby suffers loss of military pay which he would otherwise have earned, he
shall be entitled to one day of income benefits for each unit training assembly
or day of paid training which he is unable to attend.
			d. Members of the Virginia Defense Force.
			e. Registered members of the United States Civil Defense Corps of the
Commonwealth, whether on duty or in training.
			f. Except as provided in subdivision 2 of this definition, all officers and
employees of the Commonwealth, including (i) forest wardens; (ii) judges,
clerks, deputy clerks and employees of juvenile and domestic relations district
courts and general district courts; and (iii) secretaries and administrative
assistants for officers and members of the General Assembly employed pursuant to
§ 30-19.4 and compensated as provided in the general appropriation act, who
shall be deemed employees of the Commonwealth.
			g. Except as provided in subdivision 2 of this definition, all officers and
employees of a municipal corporation or political subdivision of the
Commonwealth.
			h. Except as provided in subdivision 2 of this definition, (i) every
executive officer, including president, vice-president, secretary, treasurer or
other officer, elected or appointed in accordance with the charter and bylaws of
a corporation, municipal or otherwise and (ii) every manager of a limited
liability company elected or appointed in accordance with the articles of
organization or operating agreement of the limited liability company.
			i. Policemen and firefighters, sheriffs and their deputies, town sergeants
and their deputies, county and city commissioners of the revenue, county and
city treasurers, attorneys for the Commonwealth, clerks of circuit courts and
their deputies, officers and employees, and electoral board members appointed in
accordance with § 24.2-106, who shall be deemed employees of the respective
cities, counties and towns in which their services are employed and by whom
their salaries are paid or in which their compensation is earnable. However,
notwithstanding the foregoing provision of this subdivision, such individuals
who would otherwise be deemed to be employees of the city, county, or town in
which their services are employed and by whom their salaries are paid or in
which their compensation is earnable shall be deemed to be employees of the
Commonwealth while rendering aid outside of the Commonwealth pursuant to a
request, approved by the Commonwealth, under the Emergency Management Assistance
Compact enacted pursuant to § 44-146.28:1.
			j. Members of the governing body of any county, city, or town in the
Commonwealth, whenever coverage under this title is extended to such members by
resolution or ordinance duly adopted.
			k. Volunteers, officers and employees of any commission or board of any
authority created or controlled by a local governing body, or any local agency
or public service corporation owned, operated or controlled by such local
governing body, whenever coverage under this title is authorized by resolution
or ordinance duly adopted by the governing board of any county, city, town, or
any political subdivision thereof.
			l. Except as provided in subdivision 2 of this definition, volunteer
firefighters, volunteer emergency medical services agency personnel, volunteer
law-enforcement chaplains, auxiliary or reserve police, auxiliary or reserve
deputy sheriffs, members of volunteer search and rescue organizations, volunteer
members of regional hazardous materials emergency response teams, volunteer
members of community emergency response teams, and volunteer members of medical
reserve corps, who shall be deemed employees of (i) the political subdivision or
public institution of higher education in which the principal office of such
volunteer fire company, volunteer emergency medical services agency personnel,
volunteer law-enforcement chaplains, auxiliary or reserve police force,
auxiliary or reserve deputy sheriff force, volunteer search and rescue
organization, regional hazardous materials emergency response team, community
emergency response team, or medical reserve corps is located if the governing
body of such political subdivision or public institution of higher education has
adopted a resolution acknowledging those persons as employees for the purposes
of this title or (ii) in the case of volunteer firefighters or volunteer
emergency medical services personnel, the fire companies or emergency medical
services agencies for which volunteer services are provided whenever such
companies or squads elect to be included as an employer under this title.
			m. (1) Volunteer firefighters, volunteer emergency medical services agency
personnel, volunteer law-enforcement chaplains, auxiliary or reserve police,
auxiliary or reserve deputy sheriffs, members of volunteer search and rescue
organizations and any other persons who respond to an incident upon request of
the Department of Emergency Management, who shall be deemed employees of the
Department of Emergency Management for the purposes of this title.

   2. Volunteer firefighters when engaged in firefighting activities under the
   supervision and control of the Department of Forestry, who shall be deemed
   employees of the Department of Forestry for the purposes of this title.
   				n. Any sole proprietor, shareholder of a stock corporation having only one
   shareholder, member of a limited liability company having only one member, or
   all partners of a business electing to be included as an employee under the
   workers&#8217; compensation coverage of such business if the insurer is
   notified of this election. Any sole proprietor, shareholder or member or the
   partners shall, upon such election, be entitled to employee benefits and be
   subject to employee responsibilities prescribed in this title.
   				When any partner or sole shareholder, member or proprietor is entitled to
   receive coverage under this title, such person shall be subject to all
   provisions of this title as if he were an employee; however, the notices
   required under &#xA7;&#xA7; 65.2-405 and 65.2-600 shall be given to the
   insurance carrier, and the panel of physicians required under &#xA7; 65.2-603
   shall be selected by the insurance carrier.
   				o. The independent contractor of any employer subject to this title at the
   election of such employer provided (i) the independent contractor agrees to
   such inclusion and (ii) unless the employer is self-insured, the
   employer&#8217;s insurer agrees in writing to such inclusion. All or part of
   the cost of the insurance coverage of the independent contractor may be borne
   by the independent contractor.
   				When any independent contractor is entitled to receive coverage under this
   section, such person shall be subject to all provisions of this title as if he
   were an employee, provided that the notices required under &#xA7;&#xA7;
   65.2-405 and 65.2-600 are given either to the employer or its insurance
   carrier.
   				However, nothing in this title shall be construed to make the employees of
   any independent contractor the employees of the person or corporation
   employing or contracting with such independent contractor.
   				p. The legal representative, dependents and any other persons to whom
   compensation may be payable when any person covered as an employee under this
   title shall be deceased.
   				q. Jail officers and jail superintendents employed by regional jails or
   jail farm boards or authorities, whether created pursuant to Article 3.1
   (&#xA7; 53.1-95.2 et seq.) or Article 5 (&#xA7; 53.1-105 et seq.) of Chapter 3
   of Title 53.1, or an act of assembly.
   				r. AmeriCorps members who receive stipends in return for volunteering in
   local, state and nonprofit agencies in the Commonwealth, who shall be deemed
   employees of the Commonwealth for the purposes of this title.
   				s. Food Stamp recipients participating in the work experience component of
   the Food Stamp Employment and Training Program, who shall be deemed employees
   of the Commonwealth for the purposes of this title.
   				t. Temporary Assistance for Needy Families recipients not eligible for
   Medicaid participating in the work experience component of the Virginia
   Initiative for Education and Work, who shall be deemed employees of the
   Commonwealth for the purposes of this title.

2. &#8220;Employee&#8221; shall not mean:
			a. Officers and employees of the Commonwealth who are elected by the General
Assembly, or appointed by the Governor, either with or without the confirmation
of the Senate. This exception shall not apply to any &#8220;state
employee&#8221; as defined in § 51.1-124.3 nor to Supreme Court Justices,
judges of the Court of Appeals, judges of the circuit or district courts,
members of the Workers&#8217; Compensation Commission and the State Corporation
Commission, or the Superintendent of State Police.
			b. Officers and employees of municipal corporations and political
subdivisions of the Commonwealth who are elected by the people or by the
governing bodies, and who act in purely administrative capacities and are to
serve for a definite term of office.
			c. Any person who is a licensed real estate salesperson, or a licensed real
estate broker associated with a real estate broker, if (i) substantially all of
the salesperson&#8217;s or associated broker&#8217;s remuneration is derived
from real estate commissions, (ii) the services of the salesperson or associated
broker are performed under a written contract specifying that the salesperson is
an independent contractor, and (iii) such contract includes a provision that the
salesperson or associated broker will not be treated as an employee for federal
income tax purposes.
			d. Any taxicab or executive sedan driver, provided the Commission is
furnished evidence that such individual is excluded from taxation by the Federal
Unemployment Tax Act.
			e. Casual employees.
			f. Domestic servants.
			g. Farm and horticultural laborers, unless the employer regularly has in
service more than three full-time employees.
			h. Employees of any person, firm or private corporation, including any public
service corporation, that has regularly in service less than three employees in
the same business within this Commonwealth, unless such employees and their
employers voluntarily elect to be bound by this title. However, this exemption
shall not apply to the operators of underground coal mines or their employees.
An executive officer who is not paid salary or wages on a regular basis at an
agreed upon amount and who rejects coverage under this title pursuant to §
65.2-300 shall not be included as an employee for purposes of this subdivision.
			i. Employees of any common carrier by railroad engaging in commerce between
any of the several states or territories or between the District of Columbia and
any of the states or territories and any foreign nation or nations, and any
person suffering injury or death while he is employed by such carrier in such
commerce. This title shall not be construed to lessen the liability of any such
common carrier or to diminish or take away in any respect any right that any
person so employed, or the personal representative, kindred or relation, or
dependent of such person, may have under the act of Congress relating to the
liability of common carriers by railroad to their employees in certain cases,
approved April 22, 1908, or under §§ 8.01-57 through 8.01-62 or § 56-441.
			j. Employees of common carriers by railroad who are engaged in intrastate
trade or commerce. However, this title shall not be construed to lessen the
liability of such common carriers or take away or diminish any right that any
employee or, in case of his death, the personal representative of such employee
of such common carrier may have under §§ 8.01-57 through 8.01-61 or § 56-441.
			k. Except as provided in subdivision 1 of this definition, a member of a
volunteer fire department or volunteer emergency medical services agency when
engaged in activities related principally to participation as an individual who
meets the definition of &#8220;emergency medical services personnel&#8221; in §
32.1-111.1 or a member of such fire department whether or not the volunteer
continues to receive compensation from his employer for time away from the job.
			l. Except as otherwise provided in this title, noncompensated employees and
noncompensated directors of (i) corporations exempt from taxation pursuant to §
501(c)(3) of Title 26 of the United States Code (Internal Revenue Code of 1954)
or (ii) property owners&#8217; associations as defined in § 55.1-1800.
			m. Any person performing services as a sports official for an entity
sponsoring an interscholastic or intercollegiate sports event or any person
performing services as a sports official for a public entity or a private,
nonprofit organization which sponsors an amateur sports event. For the purposes
of this subdivision, &#8220;sports official&#8221; includes an umpire, referee,
judge, scorekeeper, timekeeper or other person who is a neutral participant in a
sports event. This shall not include any person, otherwise employed by an
organization or entity sponsoring a sports event, who performs services as a
sports official as part of his regular employment.
			n. Any person who suffers an injury on or after July 1, 2012, for which there
is jurisdiction under either the Longshore and Harbor Workers&#8217;
Compensation Act, 33 U.S.C. § 901 et seq., and its extensions, or the Merchant
Marine Act of 1920, 46 U.S.C. § 30104 et seq. However, this title shall not be
construed to eliminate or diminish any right that any person or, in the case of
the person&#8217;s death, his personal representative, may have under either the
Longshore and Harbor Workers&#8217; Compensation Act, 33 U.S.C. § 901 et seq.,
and its extensions, or the Merchant Marine Act of 1920, 46 U.S.C. § 30104 et
seq.
			o. An owner-operator of a motor vehicle that is leased with or to a common or
contract carrier in the trucking industry if (i) the owner-operator performs
services for the carrier pursuant to a contract that provides that the
owner-operator is an independent contractor and shall not be treated as an
employee for purposes of the Federal Insurance Contributions Act, 26 U.S.C. §
3101 et seq., Social Security Act of 1935, P.L. 74-271, federal unemployment tax
laws, and federal income tax laws and (ii) each of the following factors is
present:

   1. The owner-operator is responsible for the maintenance of the vehicle;

   2. The owner-operator bears the principal burden of the vehicle&#8217;s
   operating costs;

   3. The owner-operator is the driver;

   4. The owner-operator&#8217;s compensation is based on factors related to the
   work performed and not on the basis of hours or time expended; and

   5. The owner-operator determines the method and means of performing the
   service.
   				&#8220;Employer&#8221; includes (i) any person, the Commonwealth or any
   political subdivision thereof and any individual, firm, association or
   corporation, or the receiver or trustee of the same, or the legal
   representative of a deceased employer, using the service of another for pay
   and (ii) any volunteer fire company or volunteer emergency medical services
   agency electing to be included and maintaining coverage as an employer under
   this title. If the employer is insured, it includes his insurer so far as
   applicable.
   				&#8220;Executive officer&#8221; means (i) the president, vice-president,
   secretary, treasurer or other officer elected or appointed in accordance with
   the charter and bylaws of a corporation and (ii) the managers elected or
   appointed in accordance with the articles of organization or operating
   agreement of a limited liability company. However, &#8220;executive
   officer&#8221; does not include (a) noncompensated officers of corporations
   exempt from taxation pursuant to &#xA7; 501(c)(3) of Title 26 of the United
   States Code (Internal Revenue Code of 1954) or (b) noncompensated officers of
   a property owners&#8217; association as such term is defined in &#xA7;
   55.1-1800.
   				&#8220;Filed&#8221; means hand delivered to the Commission&#8217;s office
   in Richmond or any regional office maintained by the Commission; sent by means
   of electronic transmission approved by the Commission; sent by facsimile
   transmission; or posted at any post office of the United States Postal Service
   by certified or registered mail. Filing by first-class mail, electronic
   transmission, or facsimile transmission shall be deemed completed only when
   the document or other material transmitted reaches the Commission or its
   designated agent.
   				&#8220;Injury&#8221; means only injury by accident arising out of and in
   the course of the employment or occupational disease as defined in Chapter 4
   (&#xA7; 65.2-400 et seq.) and does not include a disease in any form, except
   when it results naturally and unavoidably from either of the foregoing causes.
   Such term shall not include any injury, disease or condition resulting from an
   employee&#8217;s voluntary:

1. Participation in employer-sponsored off-duty recreational activities which
are not part of the employee&#8217;s duties; or

2. Use of a motor vehicle that was provided to the employee by a motor vehicle
dealer as defined by &#xA7; 46.2-1500 and bears a dealer&#8217;s license plate
as defined by &#xA7; 46.2-1550 for (i) commuting to or from work or (ii) any
other nonwork activity.
			Such term shall include any injury, disease or condition:

1. Arising out of and in the course of the employment of (a) an employee of a
hospital as defined in &#xA7; 32.1-123; (b) an employee of a health care
provider as defined in &#xA7; 8.01-581.1; (c) an employee of the Department of
Health or a local department of health; (d) a member of a search and rescue
organization; or (e) any person described in clauses (i) through (iv), (vi), and
(ix) of subsection A of &#xA7; 65.2-402.1 otherwise subject to the provisions of
this title; and

2. Resulting from (a) the administration of vaccinia (smallpox) vaccine,
Cidofivir and derivatives thereof, or Vaccinia Immune Globulin as part of
federally initiated smallpox countermeasures, or (b) transmission of vaccinia in
the course of employment from an employee participating in such countermeasures
to a coemployee of the same employer.
			&#8220;Professional employer organization&#8221; means any person that enters
into a written agreement with a client company to provide professional employer
services.
			&#8220;Professional employer services&#8221; means services provided to a
client company pursuant to a written agreement with a professional employer
organization whereby the professional employer organization initially employs
all or a majority of a client company&#8217;s workforce and assumes
responsibilities as an employer for all coemployees that are assigned,
allocated, or shared by the agreement between the professional employer
organization and the client company.
			&#8220;Staffing service&#8221; means any person, other than a professional
employer organization, that hires its own employees and assigns them to a client
to support or supplement the client&#8217;s workforce. It includes temporary
staffing services that supply employees to clients in special work situations
such as employee absences, temporary skill shortages, seasonal workloads, and
special assignments and projects.

HISTORY: Code 1950, §§ 65-2 through 65-7.1, 65-24, 65-25; 1952, c. 551; 1954,
c. 246; 1956, cc. 283, 479; 1956, Ex. Sess., c. 53; 1958, c. 187; 1960, c. 149;
1962, c. 530; 1964, c. 603; 1966, c. 200; 1968, c. 660, §§ 65.1-2, 65.1-3,
65.1-4, 65.1-5 through 65.1-8, 65.1-27, 65.1-28; 1970, c. 470; 1971, Ex. Sess.,
c. 7; 1972, cc. 464, 619; 1973, cc. 297, 542; 1975, c. 330, § 65.1-4.1; 1976,
c. 187; 1977, c. 326; 1978, cc. 41, 841; 1979, c. 80, § 65.1-2.1; 1980, c. 421,
§ 65.1-4.2; 1983, c. 346; 1984, cc. 388, 694, 703, § 65.1-4.3; 1987, cc. 213,
308, § 65.1-4.4; 1988, c. 360; 1989, cc. 312, 319, 437, §§ 65.1-4.5,
65.1-4.6; 1990, c. 838, § 65.1-4.1:1; 1991, cc. 277, 354, 355; 1992, c. 12;
1993, c. 280; 1994, cc. 271, 286, 526; 1995, cc. 4, 168, 272, 288; 1996, cc.
250, 721; 1998, c. 52; 1999, c. 1006; 2000, cc. 301, 624, 718, 1018; 2002, c.
69; 2003, c. 999; 2004, cc. 888, 928; 2005, cc. 354, 368, 374, 472; 2006, c.
629; 2007, c. 475; 2010, cc. 158, 278; 2011, cc. 572, 586, 665; 2012, c. 654;
2014, c. 209; 2015, cc. 13, 221, 442, 447, 502, 503; 2019, c. 210.