The Defense Base Act is federal law that extends the Longshore and Harbor Workers' Compensation Act (LHWCA) to apply to certain categories of employees working overseas. The three general divisions of covered employees are (1) those working on military bases acquired from a foreign government after 1940, (2) employees of contractors and subcontractors engaged in public work projects for the U.S. government outside the continental United States, and (3) individuals employed outside the continental United States by a U.S. employer whose purpose it is to provide welfare or other such services to the Armed Forces as approved by the secretary of defense.
With much work continuing in war-torn places like Iraq and Afghanistan, the number of Defense Base Act (DBA) claims remains steady, and continues to grow. The DBA covers the following employment activities:
- Work for private employers on U.S. military bases or on any lands used by the U.S. for military purposes outside of the United States, including those in U.S. Territories and possessions
- Work on public work contracts with any U.S. government agency, including construction and service contracts in connection with national defense or with war activities outside the United States;
- Work on contracts approved and funded by the U.S. under the Foreign Assistance Act, which among other things provides for cash sale of military equipment, materials, and services to its allies, if the contract is performed outside of the United States;
- Work for American employers providing welfare or similar services outside the United States for the benefit of the Armed Services, e.g. the United Service Organizations (USO)
If any one of the these criteria is met, all employees engaged in such employment are covered under the DBA. As the Employer, you should ensure that you carry appropriate and adequate insurance coverage.
Additionally, please sure that you understand and adhere to the procedural dictates of the DBA. For example, under the DBA, a company must report any injury or death to OWCP's Division of Longshore and Harbor Workers' Compensation within 10 days, and any knowing and willful failure to report subjects the employer to a civil penalty, just as The Sandi Group/Corporate Bank Financial Services discovered not too long ago when it was fined $75,000 by the US DOL for failure to report injuries and death subject to the provisions of the DBA.
You should also be aware of DBA Waivers. Upon the written request of the head of any department or other agency of the United States, the Secretary of Labor may waive the application of the Defense Base Act with respect to any contract, work location, or class of employees. The request for waiver must be made by the government agency to the Department of Labor (DOL), OWCP. It is Department of Labor policy that the waiver does not apply to citizens or legal residents of the U.S. or to employees hired in the U.S. Once granted, the waiver is only valid if alternative workers' compensation benefits are provided to the waived employees pursuant to applicable local law.
If you have any questions, or think you may be subject to the Defense Base Act and need further information, please contact an experienced attorney to protect your company's interests.
