Date: March 2019
Many public entities have come to rely on the generosity of volunteers and interns to help provide services to constituents. Although the volunteer or intern may be working side-by-side with staff—on the premises or independently with the entity’s knowledge—the relationship is different from the typical one of employer and employee.
This difference can lead to questions regarding MCIT members’ risk exposures and coverage related to volunteers and interns.
4 Important Elements
When entities use volunteers, they should keep in mind four key points to help reduce risks.
1. Policy: An organization should have policies and procedures related to volunteers. They should include who authorizes volunteers, for what volunteers are needed and how the entity will utilize the volunteers. Although volunteer needs vary, departments engaging volunteers should have the opportunity to provide input in policy development. Once policies and procedures are set, all employees and officials need to follow them.
2. Registration: This is a key element when securing volunteers for any situation, as it confirms that the entity and volunteer have been in contact. Registration can vary from a sign-in sheet to applications and interviews. Registration also is a trigger for MCIT’s coverage if there is a claim involving a volunteer.
The type of registration varies by the type of volunteer. Obviously in an emergency situation, gathering volunteers needs to be completed on short notice. Registration may be as simple as reporting to a county location to sign in with one’s name. Additional information such as address, phone number and emergency contact should be kept separate as private data.
A medical-services or law enforcement volunteer should go through a more detailed registration, such as completing an application, an interview and a background check. Their duties could involve exposures that bring more risk to an organization.
The important key is that the entity knows who its volunteers are.
3. Direction: Volunteers are expected to be acting on behalf of, subject to the direction of and under the control of the entity. Volunteer duties need to be assigned by the entity. Entities must plan what types of volunteers are necessary for various jobs. The volunteer needs to be placed in a position that is a good fit for him or her.
Direction of volunteers helps keep an entity in control of volunteers’ activities. At the time of registration, an entity representative must evaluate the volunteer. For example, the volunteer needs to be in the proper condition to perform certain tasks or may need to wear proper clothing or footwear.
Once volunteers complete duties for an entity, there may be opportunities to debrief and discuss their experiences. Valuable information can be gathered for future volunteer needs.
4. Training: The type of volunteer work may dictate the type of training a volunteer may need. Most emergency management activities, such as sandbagging and general storm clean up, require volunteers who are in reasonably good shape to handle the heavier work. In these situations, the training may be as basic as good lifting practices. A sheriff’s posse member on the other hand, needs more specialized training, such as riding a horse, and search and rescue skills. This differs from a dive team that needs specific water training. A reminder is that all law enforcement training for specialized volunteer groups must be at the direction of the sheriff.
These four keys are included in the questions and answers that follow.
Who Is and Is Not a Volunteer?
A volunteer is defined as a person who performs or offers to perform a service voluntarily and without the expectation of compensation. Volunteers can be retirees, students or unpaid interns. There can also be specialized volunteer positions, such as driver, caregiver, medical-services worker, peace officer or posse member.
It is also important to recognize that services can be provided that appear to be on a volunteer basis but actually are not because the individual does not meet the criteria for a volunteer. Inmates on work release or completing community service for a sentence are not considered volunteers. They are completing a mandatory service due to a sentence. Any claims are handled the same as if they are inmates according to Minnesota Statute 3.739—Injury or Death of Conditionally Released Inmate.
Volunteers for another organization, such as the Red Cross, completing tasks for the member are not the public entity’s volunteers. Rather, they are the other organization’s (e.g., Red Cross’) volunteers. If the person is registered with and directed by another organization, that person is not the public entity’s volunteer.
Are Interns Volunteers?
Interns are likely college students gaining supervised practical experience by working with the entity. They are completing their studies while gaining credits for their degrees. Because the educational institution selects interns and maintains involvement with them, MCIT recommends an agreement be in place with the school.
Interns who are paid a wage are generally considered employees. Most public entity interns do not receive wages, thus are considered volunteers.
Unpaid interns are similar to nonemergency volunteers in that they are not eligible for workers’ compensation if they are injured while performing duties.
Note: For the remainder of this article, the term “volunteer” includes unpaid interns.
What Happens if the Entity or Volunteer Is Sued?
An entity may be liable for its volunteers’ activities. Every municipality is subject to liability for its torts, and the torts of its officers, employees and agents while they are acting within the scope of their employment or duties whether arising out of a governmental or proprietary function. A public entity volunteer would likely be considered an agent of the public entity under Minnesota Statute 466—Tort Liability, Political Subdivisions.
A public entity may be required by law to defend and indemnify its volunteers for claims brought against them while they were performing duties as volunteers, provided that volunteers are not guilty of malfeasance, willful neglect of duty or bad faith.
The statutory caps on damages and immunities would likely apply to claims brought against an entity or volunteer in a state tort claim. The tort caps are currently set at $500,000 per claimant and $1.5 million
MCIT’s liability coverage defines “covered party” as officials, employees and authorized volunteers. The “covered party” definition also includes the member’s law enforcement personnel. This can include volunteer groups that operate under the direction of the sheriff, such as posses, response teams or dive teams. Coverage is subject to the terms and conditions of the MCIT Coverage Document.
An authorized volunteer is a person registered with and approved by the entity to do volunteer work. One of the keys to managing volunteers is registration. By registering an individual, the entity acknowledges the individual as a volunteer and accepts responsibility for his or her volunteer activities.
What Happens If a Volunteer Is Injured?
Generally workers’ compensation coverage does not apply to the injuries of volunteers because they do not meet the definition of an employee found in the workers’ compensation statute, Minnesota Statutes, Chapter 176—Workers’ Compensation (available at Revisor.leg.state.mn.us). This means a volunteer, such as for a park, library or office, or as a driver, is not eligible for workers’ compensation if he or she is injured while volunteering.
MCIT recommends that entities make clear to volunteers that they are responsible for any expenses related to injuries received while volunteering for the entity. However, MCIT’s medical payments coverage (up to $2,500) could apply to a situation involving a volunteer or intern.
Three exceptions to the above are found in Minnesota Statutes, however:
1. Law enforcement assistance volunteers: Minnesota Statutes, Section 176.011, Subdivision 9 defines law enforcement assistance volunteers as employees. Thus, law enforcement groups, such as posses, response teams and dive teams, are protected by workers’ compensation—for both injuries incurred during training and active duty.
Law enforcement assistance volunteers must be registered with the entity. Typically, the entity will have in-depth information about these volunteers. Training and active duty must be directed by the sheriff for workers’ compensation to respond.
2. Emergency management volunteers: Voluntary, uncompensated workers engaged in emergency management as defined in Minnesota Statutes, Section 12.03 Subdivision 4 are considered employees eligible for workers’ compensation. They are covered when on active duty and when in training for an emergency or disaster. Attendance must be directed by the member for coverage to apply.
Even though volunteers are needed quickly, the keys to managing emergency volunteers remain the same. These volunteers must be registered with the entity and act within the scope of duty directed by the entity. Brief training is prudent to help manage risks.
3. Public health volunteers: These volunteers can be considered part of emergency management, such as when administering vaccinations or in preparation for an epidemic, and eligible for workers’ compensation. See above for emergency management volunteers. Public health volunteers may also be considered another local entity’s volunteers if they are under that organization’s direction.
A Minnesota Medical Reserve Corps volunteer responding to a request for training or assistance at the call of a community health board, county or city will be deemed an employee of the entity who called for the volunteer, making him or her eligible for workers’ compensation coverage.
For an organization that would like to provide some type of protection for volunteers not eligible for workers’ compensation, special risk accident policies are available outside of MCIT. The protection pays for medical expenses. The amount of medical limits can be chosen and additional benefits can be purchased; however, the coverage does not extend to lost wages. Interested members should contact MCIT to obtain more information.
How Are Volunteer Drivers Covered?
Volunteer duties may include driving one of the entity’s vehicles. As explained previously, volunteers are considered a covered party for liability, including automobile liability.
Volunteers using their own vehicles should be aware of and acknowledge their understanding that a basic rule of Minnesota automobile insurance is that insurance on the vehicle follows the vehicle. The primary coverage responding to a claim is the vehicle owner’s insurance. In other words, the volunteer’s personal auto policy would respond if the volunteer had an accident with his or her own vehicle while volunteering.
Minnesota law requires that automobile owners carry insurance in an amount not less than:
- $30,000 for injury per person
- $60,000 for injury to two or more persons
- $10,000 for property damage
MCIT’s nonowned auto liability could be excess if the primary limits of the volunteer’s policy are exhausted. Nonowned auto liability coverage applies to vehicles owned by the volunteer or a family member as defined in the MCIT Coverage Document. For example, a volunteer uses his or her own vehicle for a task on behalf of the member and is involved in a serious at-fault auto accident. The volunteer has insurance coverage of $100,000 combined single limits for liability. The other driver’s bodily injury and property damage exceeds that amount. MCIT’s automobile liability coverage responds on an excess basis up to the tort cap limits.
What Happens If Volunteers Damage Their Own Equipment?
MCIT’s property coverage offers a sublimit of coverage of $5,000 for the personal property of an officer, employee or volunteer at a scheduled location. Coverage is subject to the property deductible. MCIT coverage only applies when the volunteer’s equipment is used for a work purpose.
The volunteer’s use of personal equipment should be approved by the entity before it is used in a volunteer situation. Members should make sure equipment is in good working order and that the volunteer is trained to use it properly.
What Happens If a Volunteer Steals Money or Property from the Entity?
Generally if the entity’s money or property is stolen from within the organization, the employee dishonesty bond applies to this loss, as the entity has suffered a financial loss. The MCIT employee dishonesty bond defines who is considered an “employee.”
Employee: An individual in a member’s service and for 30 days after termination of that service whom the member compensates directly by salary, wages or commissions and whom the member has the right to direct and control while performing services for the entity. The definition includes elected and appointed officials, anyone sitting on a member’s governing board, commission or committee and a substitute for a permanent employee on leave.
Volunteers do not fit this definition. As a result, if a volunteer were to steal an entity’s property or money, the theft would not be covered under the bond and the entity would not be compensated. MCIT recommends limiting volunteers’ access to money and property.
Risk Management Recommendations
Members need to understand how coverage may or may not apply when engaging volunteer services and manage the risks accordingly. MCIT offers the following suggestions:
- Evaluate volunteer needs, how they will be utilized and who is in charge of them.
- Evaluate the risks surrounding the use of volunteers, ensuring that both the community and volunteers are safe.
- Follow policies and procedures for managing volunteers.
- Establish procedures for registration, depending on the type of volunteer duties.
- Follow the entity’s volunteer procedures for registration, direction for the scope of duty and training of volunteers.
- Offer orientation and training to volunteers when appropriate.
- Control emergency sites at the entrance for registration.
- Control egress from an emergency site for an opportunity to debrief volunteers.
- Maintain clear descriptions for volunteer positions, including responsibilities and expectations.
- Limit a volunteer’s or intern’s exposure to money and tangible property.
- Determine if screening volunteers is appropriate according to the type of duty.
- Promptly report any incident or claim involving a volunteer to MCIT.
Recommendations Specific to Interns
- Determine if the intern will be compensated:
- If compensated, the intern will be considered an employee.
- If unpaid, the intern’s exposures are similar to a volunteer’s.
- Obtain an agreement with the educational institution.
Members are encouraged to contact their MCIT risk management consultant with questions regarding volunteers and interns.