Current through Register Vol. XLI, No. 50, December 13, 2024
Section 85-23-6 - Tier Three Employer6.1. Classification. The commission shall classify as tier three employers all properly classified (for ratemaking purposes under the provisions of W. Va. Code § 23-2-4) employers: 6.1.1. Who do not participate in the focus program employer program requirements;6.1.2. Who do not participate in the target program employer program requirements; or6.1.3. Who do not comply with the requirements of a target program employer.6.2. Notification. The commission shall notify all employers who are classified as a tier three employer. The commission shall include in the notification the reason or reasons for such classification as a tier three employer. The commission shall include in the notification an analysis of the occupational injuries and diseases incurred by the employer and a list of qualified safety consultants and agencies.6.3. Requirements. Every tier three employer shall be subject to all requirements of the target program employer group.6.4. Premium tax surcharge. In addition to other requirements of this rule, tier three employers may, in the discretion of the commission, be subject to quarterly premium tax surcharges not to exceed twenty-five percent (25%) of premium tax due on a quarterly basis. Premium tax, for purposes of calculating the surcharge only, shall not include the penalty premium tax under W. Va. Code § 23-2-5(f)(1). 6.4.1. The premium tax surcharge shall continue for such additional quarters as may be determined by the commission.6.4.2. The commission shall not be required to impose a premium tax surcharge on every tier three employer. The shall consider, but not be limited to, the following criteria, in its determinations of (1) whether to impose a premium tax surcharge, (2) what percentage of premium tax surcharge to apply to the quarterly premium tax, and (3) how long the premium tax surcharge shall be applied to the quarterly premium tax: a. Whether the employer has been properly classified for purposes of determining the employer's experience modification factor;b. Whether the experience modification factor is an effective method of determining the employer's mandated status under this rule;c. Whether the employer is engaged in a unique employment category such that there is no suitable classification for purposes of determining the employer's experience modification factor;d. Whether the employer has experienced significant changes in the number of payroll employees so as to adversely affect the employer's experience modification factor;e. Whether the employer has experienced a catastrophic loss or other anomalous circumstance so as to adversely affect the employer's experience modification factor; andf. Whether the employer is in substantial compliance with the requirements of a target program employer.6.4.3. Upon the imposition of premium tax surcharges, the commission shall provide a written notification as to the reasons for such a determination. The written determination shall include such factors as the deems appropriate, including but not limited to, the five factors outlined in the previous paragraph.6.5. Reclassification. The commission shall review the employer's performance criteria at the conclusion of each review period. Such review shall be completed within thirty (30) days following the receipt of the employee's quarterly report for the second quarter of each review period. 6.5.1. After full participation as a tier three employer for two (2) consecutive review periods and after demonstration by the employer of measurable improvement, the tier three employer shall be reclassified. If the employer's evaluation criteria meets the requirements for classification as a target program employer, the employer shall be subject to the requirements for a target program employer. If the employer's evaluation criteria meets the requirements for classification as a focus program employer, the employer shall be subject to the requirements of a focus program employer.6.5.2. If the employer's performance criteria is below the evaluation criteria for a focus program employer, the employer shall not be subject to further review, so long as the employer's performance criteria remains below the evaluation criteria for a focus program employer.