Crew Injury on Your Set: How to Protect Yourself (and Your Crew)

March 10, 2017

By David Walker

Illustration by Sharon Ber

If you’re shooting a job and someone on your set gets seriously injured, the only thing between you and financial ruin may be workers’ compensation insurance coverage for the injured party.

Workers’ compensation is no-fault insurance that protects employers from legal claims for medical costs and benefits resulting from injuries on the job. Photographers are responsible for making sure everyone on set has workers’ comp coverage, whether they’re studio employees, freelance photo assistants, or independent contractors such as a producers and stylist (and their assistants). If the crew isn’t covered, the photographer is liable for costs stemming from injuries on set. Photographers also face heavy fines if they’re caught running a set with uninsured crew.

Yet many photographers shoot assignments without proper workers’ comp coverage. It may be because the paperwork is complicated, or because a photographer is unaware of the law. It may be because the photographer’s clients are unwilling to cover the expense of the insurance.

Many clients and ad agencies “do not want to pay for [workers’ comp coverage] and often ask for us to remove it from the estimate,” says photographer’s rep Heather Elder.  “By law, it needs to be paid, so it is a hard cost for the photographers and a very difficult and expensive line item to remove.  We try very hard not to remove it.”

Freelance art buyer Karen Meenaghan, who recently presented a mock assignment to two photographers’ reps in order to demonstrate for PDN readers how the estimating process works, had much to say about the importance of workers’ comp coverage. One of the estimates included workers’ comp coverage for the models, photo assistants and production assistants. But the estimate included no workers’ comp coverage for the stylists or their assistants.

The rep who wrote that estimate had presumed that stylists take care of their own workers’ comp coverage. But Meenaghan countered that it is not safe to assume anyone on set carries their own workers’ comp insurance. She asked the rep to re-submit the estimate with a line item for workers’ comp coverage for everyone, including stylists and their assistants.

Under the laws of most states, employers are responsible for workers’ comp coverage for their employees. It’s a common misconception that freelancers are responsible for their own coverage—because they’re not employees. In recent years, however, New York and California have been defining “employee” more broadly, for the purposes of workers’ comp and other labor laws. The definition now includes independent contractors who are working under your direction or control.

“An employee is anyone who works for us for just one day,” says Ian Kaplan, a producer at The Custom Family, an advertising production company based in New York.

“A photographer who hires an independent contractor either needs that contractor to show proof of their workers’ comp coverage or needs to secure coverage in the event that independent contractor is injured on the photographers’ job,” says Karen Stetz, a broker for APA Insurance Services, which provides insurance coverage for members of American Photographic Artists. (PDN got the full rundown from Stetz to learn about other types of insurance photographers should have to protect themselves and their business as well).

Proof of insurance, in the form of a certificate of insurance (COI) from the insurance provider, is key. It can be a mistake to assume your independent contractors have their own workers’ comp insurance. For instance, a stylist may be a partner in an LLC. But that doesn’t mean he or she has workers’ comp coverage, because LLCs aren’t required by law to carry workers’ comp insurance for their partners.

There are various ways photographers can purchase workers’ comp coverage for their salaried, hourly, and freelance employees. Private insurance brokers offer workers’ comp policies, usually as part of an insurance package that includes general liability and other coverage. “It’s important to have someone who specializes in photography insurance help you navigate this,” says Don Pickard, principle of TCP & Co, a California-based photography insurance broker.

Kaplan also advises photographers to consult with a broker about workers’ comp insurance. “Frankly, it’s complicated,” he says.

Kaplan says the only way to buy a standalone workers’ comp insurance policy is through state insurance funds. “Those policies are much more cost effective,” he notes. But state insurance policies may not cover out-of-state crew. (Note: In Washington, Ohio, Wyoming, North Dakota, Puerto Rico, and the US Virgin Islands, workers’ comp insurance is available only from the state, not private insurers.)

The cost of workers’ comp insurance coverage varies by state and according to the photographer’s level of activity. “The busier a studio is, the higher their policy and rates will be,” says Elder.

The minimum cost for a policy ranges between $500 and $850, Pickard says. Most photographers will pay more than that, though, and the cost is based upon an estimate of total payroll—staff and freelance— for the entire year. “At the end of the year, the insurance company can audit you, and see what you actually spent” on payroll, Pickard says. If you’ve made any 1099 payments to independent contractors, the insurance company will ask to see the certificates of workers’ comp insurance for those contractors. “If you’re like, ‘I don’t have the certificates,’ the insurer will charge you” for their workers’ comp coverage, Pickard explains.

He notes that photographers aren’t required to buy workers’ comp insurance for themselves, because their medical insurance covers them for injuries they sustain on their own sets.

Another option for covering your workers’ comp liability is to hire a payroll service for the shoot. Photographers often use payroll services to pay models at the end of the shoot. The payroll services deducted taxes and make sure the models have workers’ comp coverage for the shoot.

Payroll services can provide those same services for all the independent contractors on set, taking the headache out of workers’ comp coverage for your crew. “However, you’re paying a premium, usually 30 percent above what you would have paid” if you’d bought an annual policy from a broker, says Pickard.

Kaplan says the payroll service that his production company uses charges a premium of just one percent, not 30 percent.

Whether you buy and annual policy to cover your employees, or hire payroll service for each job, the cost of workers’ comp insurance coverage for most photographers is likely to be several thousand dollars per year. But that’s far less than the cost of a serious injury to one of your crew members, should you get caught without the insurance. Of course, if you’re unable to pay those costs, the injured crew member’s lawyer will probably go after your client—which is something you can always mention to clients who insist you take the workers’ comp insurance (or payroll expense) line item out of your estimate.

Related: Insurance: What Coverage You Need

What If You Break a $300,000 Figurine While on Assignment?

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How to Pay the Bills If You’re too Sick or Injured to Work