Workers compensation under the Defense Base Act

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1. What the Act does

The chapter at 42 U.S.C. 1651 to 1654 may be cited as the Defense Base Act, under the short title note to its first section (42 U.S.C. 1651). It applies the Longshore and Harbor Workers’ Compensation Act, with the Act’s own changes, to the injury or death of employees in six kinds of employment abroad (42 U.S.C. 1651(a)). Coverage applies wherever the injury or death occurs. It includes injury or death while traveling to or from the place of employment, where the employer or the United States provides the transport or pays for it.

The statute still refers to the Canal Zone, territories and possessions, and the Mutual Security Act of 1954 (42 U.S.C. 1651(a)).

2. Bases, lands and public works

The first three kinds of employment are tied to place, and the third also requires a government contract (42 U.S.C. 1651(a)(1)). The Act covers employment at any military, air or naval base acquired after 1 January 1940 by the United States from a foreign government. It covers employment on lands used by the United States for military or naval purposes in any territory or possession outside the continental United States (42 U.S.C. 1651(a)(2)). The Act names the Naval Operating Base at Guantanamo Bay among them.

The third kind is employment on any public work in such a territory or possession, under a contract or subcontract at any tier with the United States (42 U.S.C. 1651(a)(3)). Employees engaged only in furnishing materials or supplies under their contract are not covered by that paragraph.

3. Public works contracts abroad

The fourth kind of employment covers public work performed outside the continental United States (42 U.S.C. 1651(a)(4)). The work must be under a contract with the United States or any of its departments, agencies or corporate instrumentalities, or under a subcontract at any tier. The work must be at places outside the areas the first three paragraphs describe.

Every such contract must require the contractor, and each subcontractor, to secure payment of compensation and other benefits under the chapter before starting performance (42 U.S.C. 1651(a)(4)). It must also require that security to stay in full force for the term of the contract, or while employees work under it. As with public works in territories, employees who only furnish materials or supplies are excluded.

The fifth kind covers contracts approved and financed by the United States and performed abroad under the Mutual Security Act of 1954, as amended, if not otherwise covered (42 U.S.C. 1651(a)(5)). Contracts under title II of chapter II of that Act are excluded, unless the Secretary of Labor, on an agency head’s recommendation, determines that a contract financed under a successor provision should be covered. The same requirement to secure and keep compensation in place applies. The sixth kind covers employment abroad by an American employer providing welfare or similar services for the armed forces under authorization by the Secretary of Defense (42 U.S.C. 1651(a)(6)).

4. Definitions

The Act defines public work (42 U.S.C. 1651(b)(1)). It means any fixed improvement or project, fixed or not, involving construction, alteration, removal or repair for the public use of the United States or its allies. It expressly includes projects or operations under service contracts and projects connected with national defense or war activities. Examples given are dredging, harbor improvements, dams, roadways and housing, as well as preparatory and ancillary work at the site.

Allies are any nation with which the United States is engaged in a common military effort, or with which it has a common defensive military alliance (42 U.S.C. 1651(b)(2)). War activities include activities directly relating to military operations (42 U.S.C. 1651(b)(3)). The continental United States means the states and the District of Columbia (42 U.S.C. 1651(b)(4)). A contractor is any individual, partnership, corporation or association, including a trustee, receiver, assignee, successor or personal representative (42 U.S.C. 1651(d)). The contractor carries the rights, obligations, liability and duties of an employer under the Longshore and Harbor Workers’ Compensation Act.

5. Exclusive liability, waivers and exclusions

The liability of an employer, contractor or subcontractor under the chapter is exclusive (42 U.S.C. 1651(c)). It replaces all other liability to covered employees and their dependents under the workers’ compensation law of any state, territory or other jurisdiction. That applies wherever the contract of hire was made.

The Secretary of Labor may waive the application of the section on the recommendation of the head of a federal department or agency (42 U.S.C. 1651(e)). A waiver may cover a contract or subcontract, a work location under such contracts, or a classification of employees. On the recommendation of an employer providing welfare services to the armed forces, the Secretary may waive it for an employee, a class of employees or a place of employment. The same subsection applied the chapter to public works contracts not completed on 16 August 1941, and to the remaining terms of certain contracts under the fifth kind. It also authorized contracting officers to amend existing contracts to conform.

Contractor liability for work under the first five kinds of employment does not extend to prisoners of war, or to protected persons under the 1949 Geneva Conventions, whom the United States detains or uses (42 U.S.C. 1651(f)). The chapter also does not apply to three groups (42 U.S.C. 1654). They are employees covered by the federal employees’ compensation provisions of title 5, employees in agriculture, domestic service or casual work outside the employer’s usual business, and a master or crew member of any vessel.

6. Benefits for non-residents, districts and courts

Two minimum limits in the Longshore and Harbor Workers’ Compensation Act do not apply under this chapter (42 U.S.C. 1652(a)). They are the minimum weekly compensation for disability and the minimum average weekly wage used for death benefits. For aliens and nonnationals who do not reside in the United States or Canada, compensation for permanent disability or death is the same amount as for residents (42 U.S.C. 1652(b)). Dependents in a foreign country are limited to a surviving wife and children, or failing them a parent the employee wholly or partly supported for the year before the injury.

For those aliens and nonnationals, the Secretary of Labor may commute future installments, and must do so on application of the insurance carrier (42 U.S.C. 1652(b)). The payment is one half of the commuted amount, as the Secretary determines. The Secretary may extend existing compensation districts, or create new ones, to cover any area where the chapter applies, and assign deputy commissioners to them (42 U.S.C. 1653(a)). Court proceedings on a compensation order are brought in the federal district where the deputy commissioner’s office is, or otherwise in the district nearest the base where the injury or death occurred (42 U.S.C. 1653(b)). Medical care in theater is covered in government support to deployed contractors.

Key terms

Defense Base Act	The short title of 42 U.S.C. 1651 to 1654, applying longshore compensation abroad.
Public work	Construction, alteration, removal or repair for public use, including service contract projects.
Securing compensation	The contract duty to arrange benefit payment before performance and keep it in force.
Exclusive liability	Compensation under the Act replaces other workers’ compensation liability to covered employees.
Commutation	Paying aliens and nonnationals living outside the United States and Canada half the commuted value of future installments.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Contractor teams abroad depend on arrangements that hold up when something goes wrong. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.