Defense Base Act Workers Compensation

Workers’ compensation under the Longshore and Harbor Workers’ Compensation Act (Longshore Act) may be extended to employees working outside of the continental United States under the Defense Base Act (DBA) (42 U.S.C. 1651). (under the DBA, Alaska, and Hawaii are considered to be part of the continental U.S.) In order to expand its scope, the original 1941 law was revised in 1953 and 1958. The War Hazards Compensation Act was added to the law in 1942.

Employment Activities: Defense Base Act Coverage

• Anyone employed by a private company working outside of the United States proper in any U.S. Territory or possession, including those working on U.S. military posts;
• All Personnel Outside the Continental United States Working on Public Works Contracts for Any Branch of the United States Government;
• All personnel engaged in the performance of activities outside the continental United States that has been approved or funded by the United States under the Foreign Assistance Act, which primarily provides for the monetary sale of military equipment, materials, or services to allies;
• Anyone working for a U.S.-based company that provides military families with aid or other services outside of the country (such as the USO).

1. The DBA applies to all employees, not just to U.S. citizens.
2. The DBA applies to foreign employers employing only third-country nationals.
3. The DBA applies to the prime contractor and to every subcontractor.
4. The language in a government contract does not determine whether the DBA applies. If the government contracting officer makes a mistake and does not require DBA coverage, then it is the contractor/employer who faces the consequences of being uninsured.
5. The DBA applies regardless of the length of the contract, whether just a few days, a year, or longer.
6. There does not necessarily have to be a causal relationship between the employment of the injured worker and the injury, nor is it even necessary that the employee be engaged at the time of the injury in an activity of benefit to his employer. All that is required is that the “obligations and conditions” of employment create the “Zone of Special Danger” out of which the injury arose. This is sometimes inaccurately referred to as 24-hour coverage

War Hazards Compensation Act supplements the Defense Base Act

We might as well revisit the War Hazards Compensation Act (42 U.S.C. 1701) while we’re at it (WHCA). The DBA’s supplementary legislation, the WHCA, was enacted in December 1942. The policy of the country is reflected in the law, which stipulates that civilians are responsible for any financial damages incurred as a result of injuries or deaths sustained while in a state of war.

The WHCA is an addendum to the DBA, allowing for three different sorts of claims: those filed directly by select employees under the WHCA, those filed by employers under the detention clause, and those filed by insurance companies for payment.

When it comes to workers’ compensation for Americans serving on foreign military sites or under government contracts, the DBA is the principal piece of legislation that applies. Any DBA worker hurt by a war risk hazard will have their claim handled by the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation. This is unaffected by the WHCA. In all three of these scenarios, coverage is provided by the WHCA:

• If an employee is covered by the DBA or NAFIA but suffers an accident that is not compensable under those statutes, the worker is nevertheless entitled to file a direct claim under the WHCA (for example, an employee injured outside of the scope of employment). People hired by the United States to perform services for them outside of the country fall under this category as well. Due to the comprehensive nature of DBA insurance, direct claims of this nature are quite unusual.
• Any employee who is taken prisoner, held hostage, or otherwise detained by a hostile force or person is entitled to file a claim under the direct claim clause above.
• Losses and costs incurred as a result of a war risk hazard may be submitted for reimbursement to insurance companies or self-insured businesses. Payments are made from a fund set up by the Federal Employees Compensation Act to cover such claims (FECA).

War Hazards Compensation Act define a war risk hazard

A “war risk hazard” is defined as a risk that arises during a war in which the United States is involved, an armed conflict in which the United States is involved (regardless of whether war has been declared), or a war or armed conflict between military forces of any origin, occurring within any country in which a covered individual is serving.

Any act of hostility, such as an uprising or revolt, or the discharge of a missile (solid, liquid, or gas), or the use of any weapon, explosive, or other noxious substance, by the United States or any of its allies, is dangerous.

Collisions between convoy vessels, operation of vessels or aircraft without running lights or other peacetime aids to navigation, operation of vessels/aircraft in a zone of hostilities, and operation of vessels/aircraft engaged in war activities are all potential sources of danger.

A “hostile force” or “hostile individual” is any nation, subject of a foreign nation, or person serving a foreign nation at war with the United States or any of its allies, or at war with or in an armed conflict with the United States or any of its allies, whether or not war has been declared, or at war or in an armed conflict between military forces of any origin in any country in which a person covered by the WHCA is serving.

IMPORTANT: WHCA coverage is continuous for eligible workers, with the exception of those who both live close to their place of employment and do not need to be there due to the nature of their job. Only time spent working counts toward coverage for these workers.

However, before submitting a “direct” WHCA claim for detention compensation, claimants must first submit a “direct” DBA claim to the relevant Longshore district office. If the Longshore District Director finds no reason to grant the claimant disability benefits after reviewing the supporting documentation, a formal denial will be issued. The WHCA then allows for the filing of the claim for detention benefits.

Any insurance company that charged a higher premium due to the possibility of a war-related loss shall not be eligible for reimbursement under the WHCA.

Although terrorist attacks are not explicitly mentioned in the statute’s definition of a war risk hazard, the Division of Federal Employees Compensation has, under certain conditions, judged terrorist action to be a war risk hazard.