2023 Colorado Revised Statutes › Title 8 - LABOR AND INDUSTRY (§§ 8-1-101 — 8-88-207) › LABOR II - WORKERS COMPENSATION AND RELATED PROVISIONS (§§ 8-40-101 — 8-67-113) › WORKERS COMPENSATION (§§ 8-40-101 — 8-47-209) › Article 41 - COVERAGE AND LIABILITY (§§ 8-41-101 — 8-41-505) › Part 4 - CONTRACTORS AND LESSEES (§§ 8-41-401 — 8-41-404) › Section 8-41-401 - Lessor contractor-out deemed employer - liability - recovery

(1)
(a)
(I)
Any person, company, or corporation operating or engaged in or conducting any business by leasing or contracting out any part or all of the work thereof to any lessee, sublessee, contractor, or subcontractor, irrespective of the number of employees engaged in such work, shall be construed to be an employer as defined in articles
40
to
47
of this title and shall be liable as provided in said articles to pay compensation for injury or death resulting therefrom to said lessees, sublessees, contractors, and subcontractors and their employees or employees' dependents, except as otherwise provided in subsection (3) of this section.
(II)
Notwithstanding subparagraph (I) of this paragraph (a) and any other provision of law to the contrary, it is presumed that a buyer of goods is not liable as a statutory employer when a lessee, sublessee, contractor, or subcontractor, or their employee who is delivering the goods to the buyer injures himself or herself while not on the buyer's premises. The presumption may be overcome by a showing that the lessee, sublessee, contractor, or subcontractor, or their employee was performing a job function that would normally be performed by an employee of the buyer of the goods being delivered. Nothing in this subparagraph (II) creates a presumption of a statutory employer-employee relationship when an injury occurs on the buyer's premises.
(III)
For the purposes of this section, a "statutory employer" is an employer who is responsible to pay workers' compensation benefits pursuant to subparagraph (I) of this paragraph (a).
(a.5)
The general assembly hereby finds and determines that the decision of the Colorado court of appeals in the case of
Newsom v. Frank M. Hall & Co.,
No. 02CA1375 (February 26, 2004), in which the court held that an independent contractor may be an entity other than a natural person, did not accurately reflect the intent of the general assembly when it passed Senate Bill 93-132 and Senate Bill 95-072. The general assembly hereby declares that the term "individual", as used in this section and in section
8-40-202
, means a natural person.
(b)
The employer, before commencing said work, shall insure and keep insured against all liability as provided in said articles, and such lessee, sublessee, contractor, or subcontractor, as well as any employee thereof, shall be deemed employees as defined in said articles. The employer shall be entitled to recover the cost of such insurance from said lessee, sublessee, contractor, or subcontractor and may withhold and deduct the same from the contract price or any royalties or other money due, owing, or to become due said lessee, sublessee, contractor, or subcontractor.
(2)
If said lessee, sublessee, contractor, or subcontractor is also an employer in the doing of such work and, before commencing such work, insures and keeps insured its liability for compensation as provided in articles
40
to
47
of this title, neither said lessee, sublessee, contractor, or subcontractor, its employees, or its insurer shall have any right of contribution or action of any kind, including actions under section
8-41-203
, against the person, company, or corporation operating or engaged in or conducting any business by leasing or contracting out any part or all of the work thereof, or against its employees, servants, or agents.
(3)
Notwithstanding any provision of this section or section
8-41-402
to the contrary, any individual who is excluded from the definition of employee pursuant to section
8-40-202 (2)
, or a working general partner or sole proprietor who is not covered under a policy of workers' compensation insurance, or a corporate officer or member of a limited liability company who executes and files an election to reject coverage under section
8-41-202 (1)
shall not have any cause of action of any kind under articles
40
to
47
of this title. Nothing in this section shall be construed to restrict the right of any such individual to elect to proceed against a third party in accordance with the provisions of section
8-41-203
. The total amount of damages recoverable pursuant to any cause of action resulting from a work-related injury brought by such individual that would otherwise have been compensable under articles
40
to
47
of this title shall not exceed fifteen thousand dollars, except in any cause of action brought against another not in the same employ.
(4)
(a)
Notwithstanding any provision of this section to the contrary, any person, company, or corporation who contracts with a landowner or lessee of a farm or ranch to perform a specified farming or ranching operation shall, prior to entering into such contract, provide for and maintain, for the period of such contract, workers' compensation coverage pursuant to articles
40
to
47
of this title covering all the employees and laborers to be utilized under such contract. Proof of such coverage on forms or certificates issued by the insurer shall be provided to the person, company, or corporation contracting for the labor prior to performing such contract.
(b)
Any person, company, or corporation contracting with a landowner or lessee of a farm or ranch to provide a specified farming or ranching operation who fails to provide coverage pursuant to subsection (1) of this section or who fails to maintain such coverage for the term of the contract commits a class 2 misdemeanor.
(c)
Notwithstanding any provision of this section to the contrary, no person, company, or corporation contracting with a landowner or lessee of a farm or ranch operation to perform a specified farming or ranching operation nor any employee of such person, company, or corporation required to be covered by workers' compensation pursuant to this subsection (4) shall have any right of contribution from, or any action of any kind, including actions under section
8-41-203
, against, the person, company, or corporation contracting to have such agricultural labor performed.
(d)
(I)
If any person, company, or corporation contracting to provide labor to perform specified farming or ranching operations and required to provide workers' compensation coverage pursuant to articles
40
to
47
of this title fails to provide such coverage and the person, company, or corporation for whom the labor is provided incurs any liability thereby, the person, company, or corporation providing the labor shall be subject to a cause of action for said liability and for reasonable attorney fees.
(II)
If the person, company, or corporation for whom the labor for the performance of a specified farming or ranching operation is provided is sued by the injured employee, said person, company, or corporation may join the person, company, or corporation providing the labor as a third-party defendant in lieu of filing an independent action.
(5)
The provisions of this section shall not apply to licensed real estate brokers and licensed real estate sales agents, as regulated in article
10
of title
12
, who are excluded from the definition of employee pursuant to section
8-40-301 (2)
.
(6)
Notwithstanding any provision of this section to the contrary, any person, company, or corporation operating a commercial vehicle as defined in section
42-4-235 (1)(a)
, C.R.S., who holds oneself or itself out as an independent contractor only to perform for-hire transportation, including loading and unloading, and who contracts to perform a specific transportation job, transportation task, or transportation delivery for another person, company, or corporation is not entering into an employee and employer relationship for purposes of workers' compensation coverage pursuant to articles
40
to
47
of this title. Nothing in this subsection (6) shall be construed to prohibit a determination that an individual is excluded from the definition of employee pursuant to section
8-40-202 (2)
if such individual is operating a commercial vehicle as defined in section
42-4-235 (1)(a)
, C.R.S.
(7)
This section shall not apply to any person excluded from the definition of "employee" pursuant to section
8-40-301 (5) or (7)
.
Amended by 2021 Ch. 462, § 94, eff. 3/1/2022.
Amended by 2019 Ch. 136, § 21, eff. 10/1/2019.
L. 90: Entire article R&RE, p. 481, § 1, effective July 1. L. 92: (7) added, p. 1798, § 2, effective June 6. L. 93: (3) amended, p. 357, § 3, effective April 12; (6) amended, p. 1861, § 1, effective June 6. L. 94: (6) amended, p. 2544, § 16, effective 1/1/1995. L. 95: (1) and (3) amended, p. 344, § 3, effective July 1. L. 96: (1) and (3) amended, p. 647, § 2, effective May 1. L. 2000: (7) amended, p. 1497, § 2, effective August 2. L. 2004: (1)(a) amended and (1)(a.5) added, p. 1078, § 1, effective May 21. L. 2013: (1)(a) amended, (SB 13-147), ch. 2262, p. 2262, § 1, effective June 5. L. 2019: (5) amended, (HB 19-1172), ch. 1647, p. 1647, § 21, effective October 1.
(1) This section is similar to former § 8-48-101 as it existed prior to 1990.
(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.