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Volunteer Programs RisKey
Overview
 
Many agencies have formal volunteer programs. Others have no formal program, but still rely heavily on volunteers. Volunteer labor is not free under either approach. Agencies with formal volunteer programs pay the cost of managing their program, such as the costs to set it up and administer. Agencies that use volunteers without a management plan and program may face unexpected costs, such as injuries to volunteers or liability claims and suits caused by volunteers. Unexpected costs can be far more than the cost of good management.
 
This RisKey will identify some of the major risks related to state volunteers. It will also offer guidance to agencies to address those risks and manage potential loss exposures associated with them.

Sections
  1. What is a “Volunteer”?
  2. Volunteer Program Goals and Expectations
  3. Risks to Others Due to Volunteer Activities (Volunteer Liability)
  4. Risks of Injury to Volunteers
  5. Waiver and Release Forms (Required Prerequisites of Coverage) 
  6. Volunteers and Remuneration
  7. Volunteers and Driving
  8. Risks to Volunteers’ Property
  9. Volunteers who are Minors (under the age of 18)
  10. Conclusion
 

What is a "Volunteer"
 
A volunteer is a person that:
  • An agency appoints in writing to perform official state duties; and,
  • Receives no remuneration for his/her service to the agency; and,
  • An agency receives the primary benefit from the work performed by the volunteer; and
  • Works at an agency’s request or consent under their direction and control.
The appointing agency has the right to direct and control the volunteer. The agency can control the results to be accomplished as well as the details and means by which the result is accomplished.
 
It is not always easy to know who may not really be a true agency volunteer. Here are some things to consider.
  • A person is likely an agency volunteer when that person:
    • Accepts full range of volunteer duties as assigned or typical for the agency program.
    • Brings the skills, knowledge and ability to perform the duties only requiring orientation and organizational specifics.
    • Reports solely to agency staff for direction and control.
  • A person may or may not be a true volunteer when:
    • Sent by a third party to fulfill their purpose or program.
    • Requests specific duties or assignments in order to fulfill the purpose of the third party.
    • Lacks the skills to perform duties and relies on training from your staff.
    • Reports to the third party about activities and skills acquired.
  • A person is likely not an agency volunteer, but actually an agent of another organization when:
    • Student performing required practicum or internship under supervision of training program instructor.
    • Formal preceptorships.
    • Volunteer for third party but doing work with your agency.

Program Goals and Expectations
 
The best-managed volunteer programs have these elements:
  • A written purpose statement, to include goals that:
    • Assure that volunteers further the mission and goals of the agency.
    • Assure no volunteer is injured and no one else is harmed due to our volunteer activities.
  • Written policies, procedures, and forms to help assure that all volunteers:
    • Are suitably screened, oriented, and trained for the duties they are to perform.
    • Have written appointments and job duties, and understand what is expected of them.
    • Have a safe workplace with safe equipment and duties that are not unreasonably hazardous.
    • Have appropriate supervision and know to whom to report problems and ask questions.
    • Understand how and when state insurance coverage applies.
    • Are properly accounted for (time, location, and type of work performed; equipment; in-service credits; workers’ compensation; etc.).
  • An employee designated to coordinate, oversee or direct volunteer selection, orientation, activities, relations with agency personnel, communication, and supervision.
  • A volunteer training program.
The following subjects address risks involving volunteers. These same risks apply to other unpaid individuals such as board members, commissioners, council members, etc. who provide service under the conditions outlined in Section 1 and 2.

Volunteer Risks to Others
 
There are two viewpoints regarding duty-related liability claims and lawsuits: Yours and your volunteer. You want to be sure you are protected. Your volunteer wants you to protect them. The good news is that you are both covered. ORS 30.285(1) says: "A public body will defend, save harmless and indemnify any of its officers, employees and agents... arising out of an alleged act or omission occurring in the performance of duty ."
 
Your volunteers are normally your agents. They are covered by the state’s liability self-insurance plan while they are acting within the scope of their duties. The agency is as responsible for the work-related torts (civil wrongs, negligence, slander, unlawful discrimination, etc.) of its volunteers just as it is for its paid employees. With volunteers, the coverage question can be more difficult if volunteer duties are vague and ill defined. It is especially problematic when duties are not in writing.
 
Case example: Suppose a volunteer teaches an adult literacy program. The volunteer drives to a local community center to give the student a lesson. The volunteer then drives the student to the library because the student does not have a car. Is the sponsoring agency liable if the volunteer negligently strikes and injures a pedestrian while driving the student to the library? Did the accident occur in the performance of their duties? What were their duties? Was driving within the course and scope of their duties? If the volunteer´s duties were clearly limited to giving training and reading in the center, they were not acting as your volunteer when they drove the student to the library. You need to decide how much and what kind of risk you want to take with your volunteers.
 
Clearly defined duties can help you avoid loss to your agency. Perform these tasks before an accident occurs:
  • Develop written job duties for your volunteers.
  • Train your volunteers to operate within their assigned duties.
The state does not cover volunteers when:
  • The volunteer is serving their own interest. Example: Using a state car for unauthorized errands.
  • When the volunteer is serving the interest of another organization. Example: Performing work for an independent contractor of a state agency.
  • When the volunteer is clearly outside the scope of their duties.

Risks of Injury to Volunteers

The agency is obligated, just as they are to their employees, to provide a reasonably safe working environment for their volunteers. So what if a volunteer is injured while performing official state business for your agency? Slips, falls, and car accidents can happen.
 
The coverage you provide volunteers for their injuries is up to you. There is no law saying you have to provide anything. It is important that your volunteers know what you do or do not provide. Then, there won’t be false expectations if they are injured.
 
The coverage choices that you have are outlined in the state Volunteer Injury Coverage Self-Insurance Policy 125-7-204. They include:

(1) Provide no coverage.
If volunteers are hurt through your negligence, state tort liability coverage would apply if a claim or suit were brought against your agency. If the volunteer’s injury is not your fault, they must look to their own insurance or resources to cover the costs.
 
(2) Arrange Volunteer Injury Coverage (VIC) through Risk Management.
VIC is the state´s self-insurance coverage for volunteers´ injuries. It is similar to many commercial accidental death or disability and personal injury protection policies. VIC pays up to a maximum of $25,000 for covered losses incurred up to one year after the accident. VIC is excess to any other applicable insurance that covers the volunteer. (This information is a brief description of coverage. For all terms and conditions, please refer to the Risk Management Policy 125-7-204, Volunteer Injury Coverage.)
 
VIC Policy conditions you should consider include:
  • Your agency must elect VIC. It does not take effect until you notify Risk Management (RM) in writing. RM then notifies your agency in writing that this coverage has been issued.
  • The injury must be caused directly and solely by an accident that occurs during and arises out of the performance of assigned official state duties. These are the duties in the volunteer´s written position description.
  • The volunteer must be appointed in writing by your agency and have specific written official state duties.
  • VIC is only given to volunteer that the agency names in its coverage election. You do not have to cover all your volunteers.
  • Agency must keep a roster of volunteers, noting which coverage, if any, covers their injury risk.
  • The agency must have each volunteer sign a VIC Form and Waiver.
  • Not all accidents and incidents are covered. See Policy 125-7-204, Volunteer Injury Coverage – Exclusions, for more details.
Why would you want to provide VIC?
  • VIC limits your financial risk to $25,000 per person per covered accident. Your agency absorbs some of the injury risk that would ordinarily be the responsibility of your volunteer.
  • As a condition of VIC, volunteers must agree to waive their right to sue you for injuries sustained while volunteering.
What does it cost your agency?
There is no cost until there is a claim. VIC claims roll into your employee injury losses. Costs are paid through your agency’s Workers’ Compensation risk charge assessments. The costs are limited. Remember: Without VIC, if volunteers are hurt through your negligence, state tort liability coverage would apply if a claim or suit were brought against your agency.
 
(3)Under special circumstances an election to provide Workers’ Compensation coverage may be appropriate.
Workers’ compensation exposes your agency to almost unlimited financial risk per claim. Under this coverage, the volunteer is entitled to all of the benefits of a paid employee. These include:
  • Time loss benefit based on an assumed wage.
  • Medical benefit for all care related to the covered injury.
  • Permanent impairment award.
  • Vocational Rehabilitation services.
Injury claims must be filed with SAIF, the state’s workers compensation insurer. SAIF will process and evaluate the claim. The injury must meet the conditions of compensability set out in ORS 656. If the claim is not compensable, there is no benefit due.
 
When would you want to provide workers´ compensation coverage?
Although it can be the right choice, we recommend against it unless:
  • The work your volunteers do is essential to your mission; and,
  • Volunteers work under the same controls, conditions and risk as your paid employees; and,
  • The work that the volunteers are doing is high risk in it’s nature, such as a Reserve Police Officer; and
  • Your agency can afford it.
To obtain workers’ compensation coverage, your agency must elect coverage by requesting that Risk Management add your agency to the volunteer employee endorsement on the State of Oregon’s Workers’ Compensation policy with SAIF Corporation.
 
When electing this coverage remember the following:
  • Risk charges will include the cost of volunteers´ workers’ compensation claims.
  • Covered volunteers need to be included in your Return to Work and Injured Worker Management programs.
  • Each month you must report volunteer hours covered by workers’ compensation. Records may be audited.
  • You must pay the DCBS workers’ compensation tax for every covered volunteer hour.
As a condition of electing this coverage, volunteers must agree to waive their right to sue your agency for injuries sustained while volunteering. However the workers’ compensation policy may not be the exclusive remedy for a volunteer as it is for a state employee.
 
What does it cost your agency?
There is no charge until there is a claim. The cost of claims are rolled into your employee injury losses. Costs are paid through your workers´ compensation risk charge assessments. Costs are not limited. Claims are counted as part of your Safety Performance Measures.
 

Waiver and Release Forms
 
The Department of Justice has reviewed the attached forms. Use great care to select the correct one. It explains tort liability and injury/medical coverage. The form must be completed by the volunteer and filed with your agency before the covered accident. You may use your own format. You may add any material specific to your agency’s needs. But you must retain our wording for the conditions of coverage, liability and insurance. The forms are:

Comment about immunity:
None of these options guarantee immunity from liability claims brought by volunteers or a member of their family, if the injury was due to your negligence. However, Risk Management and our general counsel believe that the waivers and releases we provide will protect you in most instances.
 

Volunteers and Remuneration
 
What can you give to a volunteer and still have an unpaid worker?
If you give gifts, free passes, etc. to a volunteer in exchange for their help, the courts may decide it constitutes remuneration. You are then providing workers’ compensation even if you did not know or intend to. The courts have said that free golf passes and free horse rides were considered remuneration. You can reimburse a volunteer for expenses, i.e., state mileage rate, cost of a meal or per diem. Reimbursements of actual expenses are not remuneration.
 

Volunteers and Driving
 
Driving is the single most dangerous activity done by state employees and volunteers on a routine basis. This is a significant risk that an agency should consider and manage when volunteers drive on state business. Take control of your vehicles and help your drivers be safe, courteous, and lawful drivers.
 
Official volunteers, whose written duties include driving and who meet the requirements for State Vehicle Use and Access (OAR 125-155), may use a state vehicle. But, it is more than likely that volunteer driving activities in private vehicles are not being monitored or addressed. Your agency may already have a policy that addresses vehicle use and safe driving standards for employees. Strive for consistency in your approach when applying these standards to your volunteers and employees.
 
Your volunteer program manager can address this risk by pairing up with your agency’s Safety Advisor or Risk Coordinator. Assure consistency with driving expectations for paid employees. Review the rules for state drivers, OAR 125-155, Vehicle Use and Access Rules. Be sure your volunteers are addressed in your agency wide policy on acceptable driving behavior and consequences for failing to drive safely.  
 
Address these standards in your policy for volunteers who drive on state business. Remember to include driving in their written duties if you plan to accept that risk.  Requirements include, but are not limited to:
  • Volunteer drivers must be at least 18 years of age
  • Volunteer drivers must possess a valid driver’s license. Most permits or restricted licenses are not acceptable.
  • Volunteers must have a driving record acceptable to your agency for the type of duties they will perform.
In addition, your Volunteer Driving Policy should include:
  • Procedures for verification of acceptable driving record. DMV driving record checks may be done upon acceptance as a volunteer, a periodic review and at the time of a vehicle incident.
  • Procedure for appropriate actions when a driving record is not acceptable.
  • Procedure for reporting vehicle incidents.
  • Procedure for handling citizen complaints and/or notice of police citation.
  • Defensive Driving Training requirements.
  • Review of vehicle incidents.
When using their personal vehicle for official state duties, the volunteer’s private insurance is primary.
 

Property of Volunteers
 
Occasionally, it may be in the state’s best interest to allow a volunteer to use privately owned personal property for official state business. Agency volunteers may be concerned about damage to their personal property when in use for official state business.
 
Your agency has the option to cover the volunteer’s property under the state’s property self-insurance. For all terms and conditions, please refer to the Risk Management Policy 125-7-101, Property Self-Insurance Policy Manual.
 
written agreement (doc)  must be in place prior to any loss. The state’s coverage is limited. For example, if a volunteer hosts an event at their home, they take on the risk of that event. The state does not provide property coverage.
 
Your agency cannot agree to insure volunteer vehicles for physical damage.

Volunteers who are Minors
(Under 18)
 
You may have volunteers who are under 18 years of age. Remember, by law, they may not drive state vehicles, even if they have a license and an acceptable driving record.
 
Most minors will come to your organization under the sponsorship of another organization. In such cases, you must review the agreement with the sending organization regarding its liability and injury coverage for this volunteer. Are they your volunteer or the volunteer of the organization that has sent them to you?
 
Make sure you have a plan to handle illnesses/injuries that require emergency treatment for a volunteer who is a minor. Take into account the work they are performing and where it is being done. An emergency treatment plan with an “Authorization for Emergency Medical Care” is essential if the volunteer will not be accompanied by their parent or legal guardian.
 
If the minor comes directly into your program as your agency’s volunteer exclusively, a parent or guardian must sign a form giving:
  • Permission for the minor to participate in your agency’s volunteer program.
  • Authorization for medical treatment in case of accident or illness.
Insure that an Authorization for Emergency Medical Care (doc) is in your agency’s possession for each volunteer minor in your program. If a minor needs immediate medical treatment, providers will not treat them without this authorization unless it is a life-threatening emergency.
  • Note: The volunteer waiver and release forms for VIC and workers’ compensation coverage already contain an authorization for emergency medical care.
Remember: The volunteer program is not a substitute for childcare.
 

Conclusion
 
Time spent setting up your volunteer program is a must. A well-managed volunteer program will improve productivity and reduce risks to your program, volunteers, clients, and the public.
 
Call us at (503) 373-RISK to discuss issues in managing the risks of your agency´s volunteer program. We can help you with risk control ideas and review your risk financing choices: liability coverage only, liability and volunteer injury coverage, or liability and workers’ compensation coverage.
 
Revised 02/05