Does West Virginia require workers’ compensation insurance?
Yes. West Virginia requires workers' compensation from the first employee: W. Va. Code 23-2-1 makes every person, firm, or corporation regularly employing another person in the state an employer, with no head-count floor. Domestic, casual, church, and small agricultural employers are carved out. Sole proprietors, partners, corporate officers, and up to four LLC managers or members can exclude themselves, so an owner with no employees has no policy to buy.
Updated . Written by Andre Beukers, principal at Redoubt, a commercial insurance agency in Salt Lake City, not a government office.
How many employees before West Virginia requires workers' comp?
West Virginia has no minimum head count. Under W. Va. Code 23-2-1(a), anyone regularly employing another person to carry on a business in the state is an employer subject to Chapter 23. Employers of domestic workers, agricultural employers with five or fewer full-time employees, churches, professional sports employers, and casual employers are not required to insure but may elect to. A casual employer has no more than three employees, working temporary, sporadic stints of no more than 10 days a calendar quarter.
Source: W. Va. Code 23-2-1, checked .
Which owners, officers, and family members are exempt in West Virginia?
Owners are covered only if the business keeps them on. Under W. Va. Code 23-2-1(d), a partnership, sole proprietorship, association, or corporation may elect not to treat its partners, owner, corporate officers, or directors as employees, and an LLC may exclude up to four people acting as managers, officers, or members. Family members on the payroll are employees; there is no separate family exemption.
The exclusion is made on the Commissioner's Notice of Election or Rejection of Workers' Compensation Coverage form, filed with the business's carrier along with proof of the person's position, such as a Secretary of State filing or board minutes. The same form reinstates coverage later.
The president, vice president, secretary, treasurer, and directors can be excluded even if they also do hands-on work. Other officers who also work as regular employees cannot be excluded just because they hold a title.
Source: W. Va. Code 23-2-1, checked .
What happens to a West Virginia employer with no workers' comp?
Under W. Va. Code 23-2C-8 the Insurance Commissioner can fine an employer up to $10,000 for going without required coverage, and the employer owes every benefit, administrative cost, and attorney's fee the Uninsured Employer Fund pays on its workers' claims, plus interest. The Commissioner can also ask the Kanawha County circuit court to stop the business from operating, or demand a bond of at least 150 percent of what is due (23-2-5a). An injured worker can sue the uninsured employer directly, and the employer loses the contributory negligence, assumption of risk, and fellow-servant defenses (23-2-8).
Source: W. Va. Code 23-2C-8, checked .
Who enforces workers' comp in West Virginia?
The Employer Coverage Unit of the West Virginia Offices of the Insurance Commissioner enforces the requirement. It works with NCCI on the proof-of-coverage system, assesses fines, asks other state agencies to revoke licenses of noncompliant employers, and decides coverage status on Uninsured Employer Fund claims. The same office regulates the carriers.
Source: WV Insurance Commissioner, Employer Coverage, checked .
Where do West Virginia employers buy coverage?
West Virginia has been a private, competitive market since July 1, 2008. Before that, the state-run Workers' Compensation Commission was the only source of coverage. Today an employer buys from any private carrier authorized in West Virginia, directly or through a licensed agent, or qualifies to self-insure (23-2C-15).
Source: W. Va. Code 23-2C-1, checked .
Who sets the class codes and rates in West Virginia?
West Virginia is an NCCI state. W. Va. Code 23-2C-18a has the Insurance Commissioner designate one rating organization to run the uniform classification, experience rating, and statistical plans every carrier must follow, and NCCI publishes West Virginia's advisory filing each year. Class codes, experience mods, and advisory loss costs come from NCCI; each carrier files a multiplier to those loss costs with the Commissioner (23-2C-18).
Source: NCCI, State Advisory Resources: West Virginia, checked .
Is there an exemption or waiver form in West Virginia?
Only for statutorily exempt employers. The Employer Coverage Unit reviews applications for exemption and issues an opinion, using the Application for Verification of Statutory Exemption. That form is for the carved-out categories in 23-2-1(b), such as domestic, small agricultural, casual, and church employers, and it states that an independent contractor cannot apply for an exemption letter. Owner and officer exclusions are a different step, filed with the carrier rather than the Commissioner.
The current exemption application (Rev. 10/2018) must be notarized, comes with a $25 fee, and asks for a copy of the West Virginia business registration certificate. Check the Employer Coverage page for the current form before filing.
A sole proprietor or partnership with no employees is not an employer under the Act, so there is nothing to file with the Commissioner. The first hire makes a policy due.
Source: WV Insurance Commissioner, Employer Coverage, checked .
Sorting out West Virginia workers' comp for your business
Tell Redoubt what the business does, who works in it, and what the West Virginia requirement in front of you says. We will say whether a policy, a waiver, or an exclusion fits.
This is general insurance information, not legal advice or a coverage determination. Statutes, agency instructions, policy forms, and the facts of the business control.
Workers’ comp requirements in every state
Each state page gives the employee threshold, the owner and officer exemptions, the penalty for going without, the rating bureau, the market, the enforcing agency, and the exemption filing, each with its statute or agency source.
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The hub, and the West Virginia pages that go deeper
West Virginia workers’ comp FAQ
Do I need workers' comp in West Virginia with only one employee?+
Yes. W. Va. Code 23-2-1 covers anyone regularly employing another person, so one part-time or family employee is enough, unless the business falls into a carve-out such as domestic, casual, church, or agricultural work with five or fewer full-time employees.
Can an LLC owner in West Virginia opt out of workers' comp?+
Yes. An LLC can exclude up to four people acting as managers, officers, or members under W. Va. Code 23-2-1(d)(3). The exclusion goes to the carrier on the Notice of Election or Rejection of Workers' Compensation Coverage form. Everyone else on the payroll stays covered.
Am I liable if my West Virginia subcontractor has no workers' comp?+
You can be. Under W. Va. Code 23-2-1d, an injured employee of an uninsured subcontractor can file against the prime contractor unless the prime obtained a certificate of coverage from the sub. Collect a current certificate before work starts.
Is a 1099 worker exempt from West Virginia workers' comp?+
Only if they meet the independent contractor test in W. Va. Code 21-5I-4: a written contract with the required acknowledgments, a business tax filing or business entity, and control over how the work is done, among other conditions. A worker who does not meet it is treated as your employee.
How do I check whether a West Virginia business has coverage?+
The Insurance Commissioner's Employer Coverage page links to the Workers' Compensation Coverage Verification system., which the Commissioner uses with NCCI's proof-of-coverage data to confirm coverage for agencies and the public.