The California labor code defines who is considered an “employee”, and who must be covered by a Workers’ Compensation policy. Under most circumstances, volunteers to public agencies are not considered employees, and are therefore excluded from Workers’ Compensation coverage. An exception to this is volunteer fire fighters and police officers; they are considered to be employees, and are therefore covered.
The labor code however allows coverage of public agency volunteers after adoption of a resolution by their governing board. If it is the desire of your agency to provide your volunteers coverage, you must adopt such a resolution for coverage to be in effect. If your agency utilizes volunteers in any capacity, this issue should be considered by your governing board whether or not you choose to provide this coverage. It is important that it is clear to your entity’s management and volunteers if coverage is or is not provided.
There are a number of issues to consider when making this decision. If you choose to provide Workers’ Compensation coverage for your volunteers, GSRMA does not presently charge an increased contribution to do so. Your contribution could be affected if one of your volunteers is injured and a claim is paid. This could have a negative effect on your loss ratio which could potentially raise your agency’s costs.
Workers’ Compensation is a “no-fault” system; the agency does not need to be negligent (at-fault) for the injured worker to receive benefits. Workers’ Compensation provides “exclusive remedy”, in other words, it is agreed and binding that the benefits provided by the Workers Compensation policy will cover the expenses incurred and no other legal action may be taken by either party. (There are limited exceptions to this). So, if a volunteer is injured while performing duties on behalf of the agency, and they are not covered by Workers’ Compensation, they would need to take legal action against the agency to receive payments for an injury. Compensation would not be automatic and the volunteer would need to prove the agency was legally liable for the costs to receive payment.
Absent Workers’ Compensation coverage, it may be much more difficult for the injured volunteer to be compensated; but the potential exists for much higher costs should the public agency be found liable. The issue is: does your district want the no-fault Workers’ Compensation system with potential known costs and protection from lawsuits; or forego the coverage and pay only for injuries to volunteers that you are determined to be legally liable for? The answer to this may not be the same for every agency.
You should evaluate your agency’s unique needs to determine how best to address this. If you have a great deal of uncertainty, it is advisable that you consult your legal counsel. We can provide you with sample resolutions if you wish to cover your volunteers under Workers Compensation and currently do not. If your agency has adopted a resolution and not provided GSRMA with a copy, we would ask that you please do so. If you would like to discuss this matter, do not hesitate to contact us.