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posted: 6/1/2013 5:08 AM

Employers must provide workers' compensation coverage

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Q. Our association is in the process of replacing its landscaping contractor. The contractor has numerous employees; however, the contractor does not have workers' compensation insurance. He says he can't afford the insurance and that he can get his employees to sign a waiver. Must an employer provide workers' compensation insurance to its employees, and can employees sign a waiver so that the employer does not have to provide workers' compensation insurance?

A. In Illinois, employers are required to maintain workers' compensation coverage. An employee cannot waive rights under the Illinois Workers' Compensation Act. As an employer, with employees, the landscaper would have to provide workers' compensation insurance to its employees. So, the association should either find another contractor or require the contractor to provide workers' compensation insurance for its employees.

A similar issue often comes up when an association is considering hiring an independent contractor who is a sole proprietor. Sole proprietors are sometimes required to maintain workers' compensation insurance, and sometimes are not but may do so voluntarily. If an independent contractor without insurance is injured on the job, he may claim that he was really an employee of the association.

If the claim is successful (and I have seen such claims succeed in the past), the association would generally be protected only if it has its own workers' compensation insurance. Otherwise, the association could be exposed to an uninsured claim. Why would an association want to put itself in that position?

The above discussion applies to the situation where the association hires an independent contractor and not an employee. To the extent that an association hires an employee, the law requires the association to have workers' compensation insurance or to obtain permission from the state to self-insure (not likely to be granted to a small condominium association). An employer that negligently fails to provide coverage can be found guilty of a misdemeanor, while an employer that knowingly fails to provide coverage can be found guilty of a felony.

Q. A homeowner in our association blatantly refuses to follow our rule of no feeding of the birds or wild animals. She keeps a large dish of seed and a large dish of water on the common area next to her patio, and a Shepard's hook with bird feeders attached to her patio railing. These attract a yard full of geese and birds that leave the area full of waste. We are going to initiate our rules violation procedures. If the board finds that she has violated the rule, can we demand that she remove the feeders and water?

A. The association's declaration provides for "self help." The board should issue the owner a notice of violation and provide an opportunity for a hearing with respect to the violation. If the board then finds the violation has occurred, the board could advise the owner to remove the feeders and water by a specific deadline or the board will remove them. If the deadline passes, and the owner does not comply, the board can employ "self help."

However, I do not suggest employing "self-help" if a breach of the peace (like a physical altercation) could ensue, or if the "self help" involves any significant undertaking. In the latter situation, the board should file suit and obtain a court order requiring an owner to remove an item installed in violation of the covenants. Anything removed when invoking "self help" should be stored and not disposed of, without giving the owner an opportunity to retrieve whatever items were removed.

Q. A unit owner in our association is refinancing his unit, and the owner has requested copies of the association's declaration and all amendments to forward to the lender. We do not have all of these documents. Is the association required to provide these documents? If so, can we charge the owner the fee charged by the recorder of deeds to obtain copies of the documents?

A. The board of an Illinois condominium, master or common interest community association is obligated to maintain certain records for examination and copying by owners. These records include copies of the declaration and all amendments.

So, yes, the association is required to provide the owner with copies of the recorded declaration and all amendments, as requested. Further, the board has to obtain these documents from the recorder's office, at association expense. The board can, however, charge the owner a reasonable fee for copying the documents.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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