OHS & Workers’ Compensation Advisor – April 2018

April 12, 2018

When Volunteers are “Workers” – 5 Key Ways to Effectively Manage OHS Risk

Authors: Loretta Bouwmeester, Partner
DOWNLOAD PDF
Volunteers.  Volunteerism.  They both matter.  Without them Canadian society would suffer.  But, when are volunteers “workers” for the purpose of OHS legislation?  What is the effect of this?  How do you keep volunteers safe and otherwise manage risk effectively?  What, in fact, are the risks?  These are questions that we have been asked and are happy to answer.
Some volunteers carry out their work outdoors in safety sensitive positions performing dangerous work; others, indoors in low risk activities.  Some volunteer for very sophisticated, large and experienced not-for-profit organizations, while others take it upon themselves to help out their neighbours and communities in response to natural disasters or simply for the betterment of their community.  In either scenario, the greater the potential and severity of harm, the greater the obligations on the volunteers providing the services and those supervising them.  Properly identifying hazards and using effective controls is a mutual responsibility from a moralistic and humanistic perspective.  What about a legal one?
The short answers to your questions are:

1. There is legal risk. It is important to understand this both from an OHS regulatory perspective – in some instances, and also from a civil liability or lawsuit perspective for vicarious liability and negligence – in all instances.  Workers’ compensation claims are also a potential risk (and have been allowed in the volunteer fire fighter sphere in particular).  In this article though we focus on the OHS regulatory liability.
2. The amount of risk depends on the applicable law where the services are provided. You need to know what the laws in your province or territory require, especially the definition of “worker”.
3. What volunteers are doing changes the risk profile. There is a wide range of possible health and safety risks.  Where possible, position descriptions and duties should be clearly set out and be the basis on which a hazard assessment is done where one is required to be carried out.
4. Due Diligence is a defence where there is provincial/territorial regulatory liability for organizations with volunteers.
5. Whether or not volunteers are being compensated is key. If they are, and not just being reimbursed for expenses or receiving a nominal benefit, generally speaking they are workers and the organization they are providing the services to is an employer. In British Columbia, Workers’ Compensation Appeal Tribunal decisions have found that both cash and non-cash payments (such as ski lift pass, gift certificate, even food and beer) are enough for an individual to be considered a “worker.” While subjective intent may be taken into consideration, whether or not they are a true volunteer, and not a worker, will be objectively assessed using the applicable law by a regulator.   As the old saying goes ‘if it walks like a duck, quacks like a duck, looks like a duck, it must be a duck’.  If you intend to be a goose – walk, honk and look like one.

Why does this all matter?

OHS convictions and penalties are expensive.  In addition to the humanistic and moralistic aspects, the internal and external resources put into managing the underlying incident (including paying for external legal and other help), means that an OHS fine or administrative penalty can cost tens or hundreds of thousands of dollars in hard costs – and, more recently, in a non-volunteer context, exceeding a million dollars in some jurisdictions for direct penalty amounts.  These significant penalties can deeply affect an organization and even threaten its viability, whether that is financially or otherwise – something that charitable and not-for-profit organizations can ill afford:  first, from a reputational perspective and second, from the perspective of regulatory enforcement actions getting in the way of the organizations being able to meet their goals and objectives.

Cases where volunteerism has led to liability for the volunteer and/or the organization they perform work for…

There are relatively few cases where an organization has been charged for the death or injury of a volunteer.  There are many more cases where a non-worker member of the public has been injured and the organization that caused it has had orders issued against it, been charged, prosecuted, and/or otherwise been subject to punitive action.  The principles in those cases apply to situations involving volunteers.
While there has not yet been a successful Criminal Code prosecution of a volunteer, or the organization that they are providing services to, there is the potential for one.  Given the OHS risks on both regulatory and criminal legislation fronts, it is helpful to canvass a couple of the cases where there has been the prosecution of a volunteer organization and a director and also where three fire services (with volunteer fire fighters) were charged.
In 2008 the Parry Sound Snowmobile District (PSSD), a not-for-profit club, was fined $35,000 in the 2007 death of a trail groomer.  The PSSD pled guilty to a charge of failing to have a written occupational safety policies procedure guide.  The Crown withdrew the remaining three charges against the PSSD.  It also withdrew all charges laid against the snowmobile club’s former president (who was a volunteer board member).   This case illustrates an example of a not-for-profit organization with a volunteer board being charged.
R. v. Port Colborne (City), R. v. Harrison and, Ontario (Ministry of Labour) v. Meaford and District Fire Department all involve emergency responses and the death or serious injury of one or more volunteer fire fighters. In all three cases multiple charges were laid, but none resulted in a successful prosecution. What these cases highlight is the prosecution risk that hazardous service activities pose when volunteers are involved.

What rights and responsibilities do volunteers and their organizations have?

Again, it depends on where the services are being provided.  In Ontario, under the Occupational Health and Safety Act, a worker is defined, in part, as being a “person who performs work or supplies services for monetary compensation”.  Although this definition does not include volunteers, the Ontario Ministry of Labour states that employers still have some responsibility for the health and safety of people visiting or helping out in their workplaces.
In contrast, Alberta’s Occupational Health and Safety Act (“OHSA”) applies to any person engaged in an occupation (i.e. worker, other than a student or in limited cases persons working in a farming or ranching operation). The OHSA defines an “occupation” as every “occupation, employment, business, calling or pursuit over which the Legislature has jurisdiction”.  Limited exceptions are set out in the OHSA that will take effect in June 2018 for farming and ranching operations and homeowners that are doing work on their own homes.  This broader definition of occupation is intended to ensure that all persons engaged in work activities are protected under the OHSA other than the limited exceptions identified.  Given that a worker doesn’t need to be paid in order to be protected under the OHSA, the OHSA also applies to volunteers.
However, determining if and when a volunteer is a worker can be difficult, as is recognized by the government in its own website.  It emphasizes that each situation needs to be assessed individually, stating that “In order for Alberta’s OHS legislation to apply, a worker needs to have an employer. The employer in this case is the organization on whose behalf the volunteer provides some type of voluntary service. When assessing a particular situation to determine if there is a worker-employer relationship, three conditions need to be met:

1. The organization requests the volunteer’s participation;
2. The organization organizes the volunteer’s activities; and
3. The volunteer provides a service to the organization, e.g. teaching a skill to students or staff, picking up garbage in an area, building a house for the organization, etc.” In other words, the OHS legislation does not apply when people, as a result of their own initiative, voluntarily provide a service to an organization, the organization has not requested the service and it has not organized the volunteers to perform the service.

In British Columbia the Worker’s Compensation Act (WCA) applies generally to all “workers”.  The term “worker” is defined broadly and includes virtually any individual who, like in Ontario, is paid for services rendered and does not employ other individuals.  While the WCA does not explicitly refer to volunteers, the WorkSafeBC Assessment Manual states that “volunteers or other persons not receiving payment for their services are generally not workers.” Workers’ Compensation Appeal Tribunal (WCAT) decisions have found that both cash and “non-cash” payments (e.g. ski lift pass, gift certificate, even food and beer) are enough for an individual to be considered a “worker”.  However, in at least one decision, WCAT found that providing a place to live and food were not enough consideration to turn a volunteer arrangement into an employment relationship.  Nevertheless, in each case WorkSafeBC will review the specific circumstances to determine whether or not an individual is a worker or volunteer, on the basis of the nature of the relationship between the parties, the nature of the work performed, and the amount of remuneration offered in exchange for the individual’s services.
In summary, any organization – a not-for-profit or otherwise – can be charged as a result of an incident if it is an employer and employs “workers”.  Workers can also be charged.  In a province like Alberta, this can happen whether or not the worker is a volunteer and whether or not they are being paid.

Volunteers when they are “Workers” have rights and obligations…so do organizations

They have the right to provide services in a safe environment and an obligation to refuse unsafe work if they are asked to do it.  The challenge is that they may not recognize that the work is unsafe if it is something that they do not have experience with.  Organizations need to take this into consideration and be careful with what they ask volunteers to do.

Tips for effectively managing risk associated with Volunteers whether or not they are “Workers”

What can be taken from the legislation in Alberta, and any other legislation where volunteers are captured in the definition of “worker”, is that the more direction and control an organization has over the volunteer, the greater the legal obligations.  The riskier the activity that the volunteer is participating in, the greater potential there is for a prosecution and a fine or other penalty.  It is for this reason that services provided for free are still not going to help the organization in the long run if the risks are not properly managed in the short-term and on the front end.
Here are five tips for effectively managing risk:

1. Training is fundamentally important, provide it. Volunteers, like all other workers should be trained to safely carry out their work.  This includes understanding, not just knowing, the hazards associated with the work and the controls in place to address them, including the Personal Protective Equipment (PPE) required and how to use it.  PPE must also be made available, be clearly communicated as being required and either be provided or have it be a pre-condition that the volunteer provide it before being allowed to work.  Auditing should also happen to make sure it is being used on an on‑going basis (i.e. they don’t take it off when the temperature rises) and otherwise to ensure work is being carried out safely.
2. Monitor and supervise volunteers for success, especially where the services they are providing are dangerous or otherwise risky in terms of potential bad outcomes.
3. Enforce reasonable rules. If a volunteer won’t or can’t safely provide services to an organization in the role that they wish to do so, consider asking them to take on a new role or refer them to another organization where they can add value.  But don’t allow them to continue if they put the viability or good work of the organization at serious risk.  Also, be especially vigilant where there are young workers providing volunteer services.  Their lack of life and work experience – and the risk that it represents – warrants it.
4. Keep good records of the services performed and who they were performed by, including training records, hazard assessments, safety meeting minutes, applications (ask for relevant education and training information), references, incident reports, and any performance assessments or benefits provided. That way if there is an incident, complaint or other follow-up required, they are available and can form the basis of a due diligence defence.  This is especially important where pre-screening is required, such as criminal records checks for volunteers working with vulnerable persons.
5. Interview and pre-screen before the volunteer starts. Their education, training, experience and suitability are all relevant factors to consider when determining if they will be a good addition to your team.  You want volunteers who can provide services competently, not just enthusiastically!

Ultimately, volunteers and volunteerism should continue to be embraced.  However, effectively managing OHS risks associated with their related activities is to the benefit of all parties involved.

OHS & Workers’ Compensation Advisor – April 2018

April 12, 2018

When Volunteers are “Workers” – 5 Key Ways to Effectively Manage OHS Risk

Authors: Loretta Bouwmeester, Partner

DOWNLOAD PDF

Volunteers.  Volunteerism.  They both matter.  Without them Canadian society would suffer.  But, when are volunteers “workers” for the purpose of OHS legislation?  What is the effect of this?  How do you keep volunteers safe and otherwise manage risk effectively?  What, in fact, are the risks?  These are questions that we have been asked and are happy to answer.

Some volunteers carry out their work outdoors in safety sensitive positions performing dangerous work; others, indoors in low risk activities.  Some volunteer for very sophisticated, large and experienced not-for-profit organizations, while others take it upon themselves to help out their neighbours and communities in response to natural disasters or simply for the betterment of their community.  In either scenario, the greater the potential and severity of harm, the greater the obligations on the volunteers providing the services and those supervising them.  Properly identifying hazards and using effective controls is a mutual responsibility from a moralistic and humanistic perspective.  What about a legal one?

The short answers to your questions are:

1. There is legal risk. It is important to understand this both from an OHS regulatory perspective – in some instances, and also from a civil liability or lawsuit perspective for vicarious liability and negligence – in all instances.  Workers’ compensation claims are also a potential risk (and have been allowed in the volunteer fire fighter sphere in particular).  In this article though we focus on the OHS regulatory liability.
2. The amount of risk depends on the applicable law where the services are provided. You need to know what the laws in your province or territory require, especially the definition of “worker”.
3. What volunteers are doing changes the risk profile. There is a wide range of possible health and safety risks.  Where possible, position descriptions and duties should be clearly set out and be the basis on which a hazard assessment is done where one is required to be carried out.
4. Due Diligence is a defence where there is provincial/territorial regulatory liability for organizations with volunteers.
5. Whether or not volunteers are being compensated is key. If they are, and not just being reimbursed for expenses or receiving a nominal benefit, generally speaking they are workers and the organization they are providing the services to is an employer. In British Columbia, Workers’ Compensation Appeal Tribunal decisions have found that both cash and non-cash payments (such as ski lift pass, gift certificate, even food and beer) are enough for an individual to be considered a “worker.” While subjective intent may be taken into consideration, whether or not they are a true volunteer, and not a worker, will be objectively assessed using the applicable law by a regulator.   As the old saying goes ‘if it walks like a duck, quacks like a duck, looks like a duck, it must be a duck’.  If you intend to be a goose – walk, honk and look like one.

Why does this all matter?

OHS convictions and penalties are expensive.  In addition to the humanistic and moralistic aspects, the internal and external resources put into managing the underlying incident (including paying for external legal and other help), means that an OHS fine or administrative penalty can cost tens or hundreds of thousands of dollars in hard costs – and, more recently, in a non-volunteer context, exceeding a million dollars in some jurisdictions for direct penalty amounts.  These significant penalties can deeply affect an organization and even threaten its viability, whether that is financially or otherwise – something that charitable and not-for-profit organizations can ill afford:  first, from a reputational perspective and second, from the perspective of regulatory enforcement actions getting in the way of the organizations being able to meet their goals and objectives.

Cases where volunteerism has led to liability for the volunteer and/or the organization they perform work for…

There are relatively few cases where an organization has been charged for the death or injury of a volunteer.  There are many more cases where a non-worker member of the public has been injured and the organization that caused it has had orders issued against it, been charged, prosecuted, and/or otherwise been subject to punitive action.  The principles in those cases apply to situations involving volunteers.

While there has not yet been a successful Criminal Code prosecution of a volunteer, or the organization that they are providing services to, there is the potential for one.  Given the OHS risks on both regulatory and criminal legislation fronts, it is helpful to canvass a couple of the cases where there has been the prosecution of a volunteer organization and a director and also where three fire services (with volunteer fire fighters) were charged.

In 2008 the Parry Sound Snowmobile District (PSSD), a not-for-profit club, was fined $35,000 in the 2007 death of a trail groomer.  The PSSD pled guilty to a charge of failing to have a written occupational safety policies procedure guide.  The Crown withdrew the remaining three charges against the PSSD.  It also withdrew all charges laid against the snowmobile club’s former president (who was a volunteer board member).   This case illustrates an example of a not-for-profit organization with a volunteer board being charged.

R. v. Port Colborne (City), R. v. Harrison and, Ontario (Ministry of Labour) v. Meaford and District Fire Department all involve emergency responses and the death or serious injury of one or more volunteer fire fighters. In all three cases multiple charges were laid, but none resulted in a successful prosecution. What these cases highlight is the prosecution risk that hazardous service activities pose when volunteers are involved.

What rights and responsibilities do volunteers and their organizations have?

Again, it depends on where the services are being provided.  In Ontario, under the Occupational Health and Safety Act, a worker is defined, in part, as being a “person who performs work or supplies services for monetary compensation”.  Although this definition does not include volunteers, the Ontario Ministry of Labour states that employers still have some responsibility for the health and safety of people visiting or helping out in their workplaces.

In contrast, Alberta’s Occupational Health and Safety Act (“OHSA”) applies to any person engaged in an occupation (i.e. worker, other than a student or in limited cases persons working in a farming or ranching operation). The OHSA defines an “occupation” as every “occupation, employment, business, calling or pursuit over which the Legislature has jurisdiction”.  Limited exceptions are set out in the OHSA that will take effect in June 2018 for farming and ranching operations and homeowners that are doing work on their own homes.  This broader definition of occupation is intended to ensure that all persons engaged in work activities are protected under the OHSA other than the limited exceptions identified.  Given that a worker doesn’t need to be paid in order to be protected under the OHSA, the OHSA also applies to volunteers.

However, determining if and when a volunteer is a worker can be difficult, as is recognized by the government in its own website.  It emphasizes that each situation needs to be assessed individually, stating that “In order for Alberta’s OHS legislation to apply, a worker needs to have an employer. The employer in this case is the organization on whose behalf the volunteer provides some type of voluntary service. When assessing a particular situation to determine if there is a worker-employer relationship, three conditions need to be met:

1. The organization requests the volunteer’s participation;
2. The organization organizes the volunteer’s activities; and
3. The volunteer provides a service to the organization, e.g. teaching a skill to students or staff, picking up garbage in an area, building a house for the organization, etc.” In other words, the OHS legislation does not apply when people, as a result of their own initiative, voluntarily provide a service to an organization, the organization has not requested the service and it has not organized the volunteers to perform the service.

In British Columbia the Worker’s Compensation Act (WCA) applies generally to all “workers”.  The term “worker” is defined broadly and includes virtually any individual who, like in Ontario, is paid for services rendered and does not employ other individuals.  While the WCA does not explicitly refer to volunteers, the WorkSafeBC Assessment Manual states that “volunteers or other persons not receiving payment for their services are generally not workers.” Workers’ Compensation Appeal Tribunal (WCAT) decisions have found that both cash and “non-cash” payments (e.g. ski lift pass, gift certificate, even food and beer) are enough for an individual to be considered a “worker”.  However, in at least one decision, WCAT found that providing a place to live and food were not enough consideration to turn a volunteer arrangement into an employment relationship.  Nevertheless, in each case WorkSafeBC will review the specific circumstances to determine whether or not an individual is a worker or volunteer, on the basis of the nature of the relationship between the parties, the nature of the work performed, and the amount of remuneration offered in exchange for the individual’s services.

In summary, any organization – a not-for-profit or otherwise – can be charged as a result of an incident if it is an employer and employs “workers”.  Workers can also be charged.  In a province like Alberta, this can happen whether or not the worker is a volunteer and whether or not they are being paid.

Volunteers when they are “Workers” have rights and obligations…so do organizations

They have the right to provide services in a safe environment and an obligation to refuse unsafe work if they are asked to do it.  The challenge is that they may not recognize that the work is unsafe if it is something that they do not have experience with.  Organizations need to take this into consideration and be careful with what they ask volunteers to do.

Tips for effectively managing risk associated with Volunteers whether or not they are “Workers”

What can be taken from the legislation in Alberta, and any other legislation where volunteers are captured in the definition of “worker”, is that the more direction and control an organization has over the volunteer, the greater the legal obligations.  The riskier the activity that the volunteer is participating in, the greater potential there is for a prosecution and a fine or other penalty.  It is for this reason that services provided for free are still not going to help the organization in the long run if the risks are not properly managed in the short-term and on the front end.

Here are five tips for effectively managing risk:

1. Training is fundamentally important, provide it. Volunteers, like all other workers should be trained to safely carry out their work.  This includes understanding, not just knowing, the hazards associated with the work and the controls in place to address them, including the Personal Protective Equipment (PPE) required and how to use it.  PPE must also be made available, be clearly communicated as being required and either be provided or have it be a pre-condition that the volunteer provide it before being allowed to work.  Auditing should also happen to make sure it is being used on an on‑going basis (i.e. they don’t take it off when the temperature rises) and otherwise to ensure work is being carried out safely.
2. Monitor and supervise volunteers for success, especially where the services they are providing are dangerous or otherwise risky in terms of potential bad outcomes.
3. Enforce reasonable rules. If a volunteer won’t or can’t safely provide services to an organization in the role that they wish to do so, consider asking them to take on a new role or refer them to another organization where they can add value.  But don’t allow them to continue if they put the viability or good work of the organization at serious risk.  Also, be especially vigilant where there are young workers providing volunteer services.  Their lack of life and work experience – and the risk that it represents – warrants it.
4. Keep good records of the services performed and who they were performed by, including training records, hazard assessments, safety meeting minutes, applications (ask for relevant education and training information), references, incident reports, and any performance assessments or benefits provided. That way if there is an incident, complaint or other follow-up required, they are available and can form the basis of a due diligence defence.  This is especially important where pre-screening is required, such as criminal records checks for volunteers working with vulnerable persons.
5. Interview and pre-screen before the volunteer starts. Their education, training, experience and suitability are all relevant factors to consider when determining if they will be a good addition to your team.  You want volunteers who can provide services competently, not just enthusiastically!

Ultimately, volunteers and volunteerism should continue to be embraced.  However, effectively managing OHS risks associated with their related activities is to the benefit of all parties involved.