LEGAL LIMBO, PART 3: VOLUNTEER COVERAGE UNDER THE FEDERAL OCCUPATIONAL SAFETY AND HEALTH ACT
BY JOHN T. BENTIVOGLIO
Part 1 appeared in the March 1996 issue and Part 2 appeared in the April 1996 issue.
A number of recent events have increased the importance of OSHA standards to the fire service. First, firefighting has become a relatively more dangerous profession; the number of firefighter injuries and fatalities has stayed constant or, in some areas, has increased while the general workplace injury rate has decreased substantially. Second, as the number of manufacturing jobs in the United States has decreased (traditionally, an area with high workplace injury rates), federal and state OSHA inspectors have refocused attention on high-risk jobs, including construction and public safety. Third, public employee unions have placed health and safety issues at the top of their agenda, forcing state OSHA officials to take a closer look at fire department compliance.
BENEFITS OF COMPLIANCE
Volunteer fire service managers should be concerned about whether their departments must comply with OSHA standards for a number of reasons. In many states, fire and rescue agencies–including volunteer departments–can be fined for OSHA violations; the fines can run into the thousands of dollars. In addition, a citation for “unsafe” practices can raise questions about a department`s commitment to its employees and the public–a loss of confidence few departments can afford. Add to the list of reasons for compliance the ever-increasing risk of lawsuits, particularly when a department violates an OSHA standard that results in damage to a third party. Finally, and most importantly, compliance with safety and health standards can reduce firefighter injuries and illness.
OSHA COVERAGE OF FIRE DEPARTMENTS
GENERALLY
A proper understanding of whether volunteer fire departments must comply with OSHA standards requires an understanding of how the OSHA law applies to career fire departments and other governmental agencies.
Under the federal OSHA law, standards issued by federal OSHA are applicable only to private employers.1 State and local governmental agencies (including career fire departments) are specifically exempt from federal OSHA standards. Therefore, state and local career fire departments are not required to comply with federal OSHA standards.2
At the same time, the OSHA law permits–but does not require–states to operate their own occupational safety and health programs. (One incentive for states to operate their own programs is that the federal government will pay up to 50 percent of the state program`s cost.) Twenty-three states and two territories have decided to operate their own programs and are called “state-plan jurisdictions.”3 In the remaining 30 nonstate plan jurisdictions (27 states, two territories, and Washington, D.C.),4 neither federal nor state OSHA standards apply to state and local career fire departments.
The OSHA law, however, imposed two important conditions on state-plan jurisdictions. First, state-plan jurisdictions must adopt state standards that are “at least as effective” as comparable federal OSHA standards.5 Federal OSHA standards operate as minimums, with state-plan jurisdictions having the option of adopting more protective standards. A large number of state-plan jurisdictions have chosen to adopt state standards that are exactly the same as the federal standards, while a lesser number of state-plan jurisdictions have adopted tougher standards for fire and rescue activities.6
Second, state-plan jurisdictions must apply their standards to state and local government employees to the same extent as workers in the private sector.7 In other words, in the 25 state-plan jurisdictions that have chosen to operate their own OSHA programs, the standards must cover both public (i.e., governmental) and private employers.
The combined effect of these two conditions is that in state-plan jurisdictions, firefighters and EMS personnel employed by state and local career fire departments must comply with state OSHA standards. In addition, these standards must be the same as or more protective than federal OSHA standards. In nonstate plan jurisdictions, firefighters and other personnel employed by career fire departments are not covered under OSHA standards.
OSHA COVERAGE OF VOLUNTEER FIRE
DEPARTMENTS
Although career fire departments in all state-plan jurisdictions must comply with state OSHA standards, the question of volunteer compliance in these jurisdictions varies from state to state. If volunteer firefighters are considered “employees” under the state`s OSHA law, they must be protected under the state OSHA standards. If they are not considered “employees,” state OSHA standards do not apply. Federal law allows each state-plan jurisdiction to determine for itself whether volunteer firefighters are “employees” and, therefore, whether their departments must comply with state OSHA standards.
In June 1983, federal OSHA offered the following explanation of volunteer compliance with state OSHA standards:
Although the Federal Fire Protection standard [which includes the fire brigade standard] does not apply to volunteer fire departments, the applicability of the Fire Protection standard to volunteer fire departments in State Plan States depends upon whether volunteer firefighters are deemed employees of State and local governments under applicable State law. The question of coverage under State law can appropriately be addressed by the State`s Attorney General ….
There are situations where volunteer firefighters receive pay for their time spent on-the-job, receive other types of remuneration, and/or are covered under workers` compensation provisions. Such facts as these may impact on whether a volunteer is an employee. If volunteer firefighters are deemed public employees under State law, the coverage of volunteer fire departments under the State`s public sector would be required. If volunteer firefighters are not considered public employees under State law, the coverage would not be expected.8
Not surprisingly, the 25 state-plan jurisdictions have taken different approaches in determining whether volunteer fire departments must comply with state OSHA standards. Some states have ruled that all volunteer firefighters are covered under state OSHA standards; other states have concluded that volunteers are not covered. Still other states determine volunteer coverage on a case-by-case basis, taking into account such factors as whether volunteers are covered under state workers` compensation statutes, receive a stipend for running calls or attending drills, or receive retirement or other noncash benefits. As a result, in some state-plan jurisdictions, volunteer firefighters in one city or county may be covered under state OSHA standards while volunteers in an adjacent city or county may not.
COMBINATION DEPARTMENTS
The fact that a fire department includes the term “volunteer” in its name does not necessarily mean that the department is exempt from OSHA requirements. Many “volunteer” fire departments employ one or more firefighters (often as apparatus driver) and are called “combination” departments.
Volunteer fire departments that employ full-time, career personnel are considered to be “employers” under state OSHA law–at least with respect to their paid firefighters. In state-plan jurisdictions, combination departments must comply with applicable OSHA standards for their career employees even if volunteer firefighters are not covered under the state`s OSHA law.
In theory, combination departments could comply with applicable OSHA standards for their full-time, paid employees while not covering their volunteers. As a practical matter, most combination departments in state-plan jurisdictions have chosen to comply with state OSHA standards for both paid and volunteer personnel.
Table 1 displays the results of a comprehensive survey of the 25 state-plan jurisdictions, which were asked whether volunteer fire/rescue personnel are covered under state OSHA standards. For more information about the survey, see page 14.
CONCLUSION
Although the coverage of volunteer firefighters under federal and state OSHA standards involves a complex regulatory scheme, volunteer compliance in state-plan jurisdictions is determined under the law of each such jurisdiction and varies from state to state. (Note: Neither federal nor state OSHA standards apply to volunteer or career departments in the 27 nonstate plan jurisdictions). As federal and state OSHA agencies increasingly focus their attention on fire/rescue agencies, volunteer fire departments are well advised to determine whether they must comply with state OSHA standards. n
Copyright, John T. Bentivoglio, 1996
Endnotes
1. Private, for-profit fire departments and EMS agencies are considered to be private employers for OSHA purposes. In the 27 nonstate plan jurisdictions (see Endnote 4), these agencies must comply with federal OSHA standards. In the 25 state-plan jurisdictions, these agencies generally must comply with state OSHA standards.
2. See Secs. 3(5) and 18(b) of the Occupational Safety and Health Act, 29 U.S.C. Secs. 653(5) and 667(b).
3. The 25 “state-plan jurisdictions” are Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington, and Wyoming. The New York and Connecticut programs apply only to public-sector employees (including state and local fire departments).
4. The 30 nonstate plan jurisdictions are Alabama, Arkansas, Colorado, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin. (See “States Operating Non-OSHA-Approved Programs for Public Employees” on page 16).
5. Sec.18(b)(2) of the Act, 29 U.S.C. Sec. 667(b)(2).
6. Among the states that have adopted state OSHA standards that are identical to the federal standards are Arizona, Hawaii, Indiana, Nevada, South Carolina, Tennessee, Utah, and Wyoming. In contrast, Michigan and Washington have adopted separate–and more protective–standards for certain fire/rescue activities.
7. Sec. 18(b)(6) of the Act, 29 U.S.C. Sec. 667(b)(6).
8. OSHA Instruction STP2-2.8B, “Fire Protection; Means of Egress; Hazardous Material,” June 20, 1983. Although this OSHA instruction focuses on the Federal Fire Protection standard (29 C.F.R. 1910, Subparts E, H, and L, which includes the Fire Brigade Standard, 29 C.F.R. 1910.156), the discussion regarding volunteer coverage applies to all OSHA standards generally, including the haz-mat (29 C.F.R. 1910.120), personal protective equipment (29 C.F.R. 1910.132-.140), confined-space (29 C.F.R. Sec. 146), and other relevant standards.
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STATES OPERATING NON-OSHA-APPROVED PROGRAMS FOR PUBLIC EMPLOYEES
As explained, the 25 “state-plan jurisdictions” must meet certain requirements to maintain OSHA certification–adopting federal standards or developing state standards that are “at least as effective” as federal standards; extending OSH coverage to state and local government employees (including volunteer personnel in some states); and enforcing the standards through workplace inspections and related efforts. In exchange, these states receive federal funding for up to 50 percent of the cost of the state program.
Several of the remaining “nonstate plan jurisdictions” have adopted OSH programs of state and local government employees without seeking OSHA approval for these plans. These states have decided to forgo federal funding to avoid the burdensome requirements imposed on state-plan jurisdictions. Here`s a quick survey of states operating separate OSH programs for public-sector employees:
Illinois. An OSH program for state government employees became effective under the Illinois Health and Safety Act in 1985. Coverage was extended to local government employees in 1987. The HSA adopted federal OSHA standards for general industry, construction, and maritime employment. New federal standards take effect in Illinois 60 days after the federal effective date unless a separate state rule is adopted.
Montana. The Montana Department of Labor and Industry has adopted rules implementing the Worker Safety Act with respect to state and local governments. The rules adopt by reference the federal general industry and construction standards.
New Hampshire. State and local government employees are covered under an OSH program adopted in 1985. The term “employee” includes volunteer members of fire departments and ambulance services, whether paid or unpaid, who are performing official service for a political subdivision (a city, county, or township, for example).
New Jersey. State and local government employees are protected under the state`s Public Employees Occupation Safety and Health Act. The New Jersey PEOSH provides protection for state and local employees equivalent to those under the federal OSH Act and standards. governmental agencies failing to comply with an order of the New Jersey Labor Commissioner to correct a safety or health violation may be fined $1,000 per day. n –JOHN T. BENTIVOGLIO
n JOHN T. BENTIVOGLIO is an attorney in Washington, D.C., and a volunteer fire/rescue sergeant and paramedic with the Bethesda-Chevy Chase Rescue Squad in Bethesda, Maryland. He is currently working on a book on OSHA compliance for fire/rescue departments. The views ex-pressed are solely those of the author.
