What protection do unpaid Tennessee emergency-management volunteers have if they're hurt on the job?

Subject

Opinion No. 12-87, Volunteers Assisting the Tennessee Emergency Management Agency, September 17, 2012

Plain-English summary

Tennessee Department of the Military General Counsel Fred Denson asked four questions about how Tennessee handles unpaid volunteers mobilized by TEMA (Tennessee Emergency Management Agency) under Tenn. Code Ann. § 58-2-113. The AG answered the first two on the merits and pretermitted the rest.

The AG's conclusions:

1. Remedy for injury or death. An unpaid TEMA volunteer's only realistic remedy is general tort law. Volunteers cannot draw workers' compensation from the State; Tenn. Code Ann. § 8-42-101(3)(B) excludes them. They do receive the same tort immunities as state employees under § 58-2-113(b). A volunteer's reimbursement request for premiums on private accident insurance is not a reimbursable claim under § 58-2-113(b)(3) (which covers "travel and subsistence expenses"). But TEMA could pay compensation to cover such an expense in its sole discretion.
2. Compensation does not flip volunteer to employee. TEMA's discretionary authority to compensate a volunteer or reimburse expenses does not make the volunteer a paid state employee or a state contract vendor. So receiving discretionary compensation does not trigger workers' compensation eligibility or contract-vendor status.

3-4. Pretermitted. The follow-on questions about workers' compensation, contracting procedures, minimum wage, Fair Labor Standards Act, and civil service protection were pretermitted because Questions 1 and 2 disposed of the issue.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

TEMA's three categories of mobilized personnel

Under Tenn. Code Ann. § 58-2-113(b), TEMA can call up:

1. State employees, who retain their normal employment compensation, powers, and immunities (§ 58-2-113(b)(1))
2. Employees of a political subdivision, who similarly retain their employment compensation and immunities, paid by the subdivision (§ 58-2-113(b)(2))
3. Anyone else, who is "entitled to the same rights and immunities as are provided by law for the employees of this state and to such compensation as may be fixed by TEMA" (§ 58-2-113(b)(3))

That third category includes "volunteers." Volunteers receive immunity equivalent to state employees while on duty. They are reimbursed for "all actual and necessary travel and subsistence expenses to the extent of funds available."

No workers' compensation for volunteers

Tenn. Code Ann. § 8-42-101(3)(B) excludes volunteers like these from the state workers' compensation system, regardless of any compensation they may receive. The AG had reached the same conclusion in Op. Tenn. Att'y Gen. 04-174 (Dec. 17, 2004).

Why discretionary pay doesn't change status

The Tennessee general rule of employment is that both parties must intend to be bound by an employment contract (Savage v. Spur Distributing Co.). TEMA's discretionary decision to provide some compensation for a volunteer's services or to reimburse expenses does not satisfy the mutual-intent requirement to create employment. Plus, § 58-2-113 specifically addresses what volunteers get; under expressio unius (Bryant v. Baptist Health System Home Care), the statute's silence on other benefits implies those benefits are not available.

"Subsistence" doesn't include insurance premiums

The AG looked up "subsistence" in the dictionary because the statute doesn't define it. Merriam-Webster defines it as "the minimum (as of food and shelter) necessary to support life" and "a source or means of obtaining the necessities of life." Travel and subsistence reimbursement covers things like food, lodging, fuel. Premiums for private accident insurance are not "subsistence" in that sense and thus aren't a reimbursable expense. TEMA could still elect to pay compensation that helps the volunteer cover such expenses, in its discretion.

EMAC and home-state law

The Emergency Management Assistance Compact (Tenn. Code Ann. § 58-2-403) is the interstate framework letting Tennessee send aid to other states. Article VIII requires that workers' compensation for a mobilized worker be paid by the home state. For Tennessee volunteers, that means Tennessee's exclusionary rule applies wherever the volunteer is deployed.

Common questions

What's tort immunity actually mean for a TEMA volunteer?
Tort immunity under § 58-2-113(b) is the same as state employees enjoy when acting within the scope of their duties. It generally shields the volunteer from personal liability for negligence during emergency-management operations.

If a volunteer is injured, who pays the medical bills?
There is no state-paid medical coverage for unpaid TEMA volunteers. Volunteers must rely on their own health insurance and any personal-injury remedies under general tort law (e.g., suing a third party whose negligence caused the injury, subject to the volunteer's own immunity).

Could the legislature change this?
Yes. The exclusion in § 8-42-101(3)(B) is statutory. The legislature could amend the law to provide some form of volunteer coverage. The AG's opinion describes the law as it then stood.

Does this apply to state and local employees mobilized by TEMA?
No. State and local employees are covered by their own employer's workers' compensation system while serving under § 58-2-113. The exclusion targets the "anyone else" category in § 58-2-113(b)(3).

Citations

Statutes:
- Tenn. Code Ann. §§ 58-2-101 to -124 (TEMA's responsibilities)
- Tenn. Code Ann. § 58-2-113 (emergency management support forces and compensation)
- Tenn. Code Ann. § 58-2-403 (Emergency Management Assistance Compact)
- Tenn. Code Ann. § 8-42-101(3)(B) (workers' compensation exclusion for volunteers)
- Tenn. Code Ann. § 9-8-307(h) (state officer and employee immunity)

Cases:
- Savage v. Spur Distributing Co., Inc., 33 Tenn. App. 27, 228 S.W.2d 122 (1949)
- Bryant v. Baptist Health System Home Care of East Tennessee, 213 S.W.3d 743 (Tenn. 2006)
- Phillips v. Tennessee Technological Univ., 984 S.W.2d 217 (Tenn. 1998)
- State v. Edmondson, 231 S.W.2d 925 (Tenn. 2007)
- State v. Clark, 355 S.W.3d 590 (Tenn. Crim. App. 2011)

Prior AG opinions:
- Op. Tenn. Att'y Gen. 04-174 (Dec. 17, 2004)
- Op. Tenn. Att'y Gen. 86-021 (Jan. 30, 1986)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-087.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

September 17, 2012

Opinion No. 12-87

Volunteers Assisting the Tennessee Emergency Management Agency

QUESTIONS

1. What remedy, if any, is available to unpaid volunteers for death or injury sustained while mobilized by the Tennessee Emergency Management Agency ("TEMA") pursuant to Tenn. Code Ann. § 58-2-113? Would a reimbursement request by an unpaid volunteer for premiums paid for private accident and injury insurance be a reimbursable claim?

2. If TEMA compensates volunteers mobilized under Tenn. Code Ann. § 58-2-113, would the payment of compensation trigger eligibility for workers compensation benefits for these volunteers as paid state employees or render these volunteers "contract vendors" for the State of Tennessee?

3. If TEMA compensates volunteers mobilized under Tenn. Code Ann. § 58-2-113, and they are considered contract vendors, what contracting process must be used to secure the volunteer service? If they are considered contract vendors, are the paid volunteers eligible for the immunity provided state officers and employees pursuant to Tenn. Code Ann. § 9-8-307(h)?

4. If TEMA compensates volunteers mobilized under Tenn. Code Ann. § 58-2-113, and they are considered paid state employees eligible for workers' compensation benefits, must these volunteers be paid minimum wage? Would these volunteers then be subject to the federal Fair Labor Standards Act, codified at 29 U.S.C. §§ 201 to -219. Would these volunteers be eligible for civil service protection and the grievance process?

OPINIONS

1. No remedy other than general tort law is likely available for unpaid volunteers for death or injury sustained while mobilized by TEMA. An unpaid volunteer's request for reimbursement for accident insurance would not constitute a reimbursable claim under Tenn. Code Ann. § 58-2-113(b)(3). However, in its sole discretion, TEMA could provide compensation to a volunteer to partially or fully pay for this expense under Tenn. Code Ann. § 58-2-113(b)(3).

2. TEMA's discretionary authority to provide a disaster relief volunteer compensation is not sufficient to classify a disaster relief volunteer as a paid state employee or as a contract vendor of personal services for the State of Tennessee.

3-4. The responses to Questions 1 and 2 pretermit these questions.

ANALYSIS

1-2. This request concerns volunteers mobilized to assist the Tennessee Emergency Management Agency ("TEMA"), whose responsibilities are codified at Tenn. Code Ann. §§ 58-2-101 to -124, and specifically the application of Tenn. Code Ann. § 58-2-113, which provides:

(a) TEMA is authorized to provide, within or out of the state, such support from available personnel, equipment, and other resources of state agencies and the political subdivisions of the state as may be necessary to reinforce emergency management agencies in areas stricken by emergency. Such support shall be rendered with due consideration of the plans of the federal government, this state, the other states, and of the criticalness of the existing situation. Emergency management support forces shall be called to duty upon order of TEMA and shall perform functions in any part of the state or, upon the conditions specified in this section, in other states.

(b) Personnel of emergency management support forces while on duty, whether inside or outside of this state, shall:

(1) If they are employees of the state, have the powers, duties, rights, privileges, and immunities, and receive the compensation incidental to their employment;

(2) If they are employees of a political subdivision of the state, whether serving inside or outside of the political subdivision, have the powers, duties, rights, privileges, and immunities, and receive the compensation, incidental to their employment. The compensation shall be provided by and through the providing political subdivision; and

(3) If they are not employees of the state or a political subdivision thereof, they shall be entitled to the same rights and immunities as are provided by law for the employees of this state and to such compensation as may be fixed by TEMA. All personnel of emergency management support forces shall, while on duty, be subject to the operational control of the authority in charge of emergency management activities in the area in which they are serving and shall be reimbursed for all actual and necessary travel and subsistence expenses to the extent of funds available.

Tenn. Code Ann. § 58-2-113.

Under this statute, TEMA is authorized to mobilize as emergency management support forces (1) state employees, (2) employees of a political subdivision of the state and (3) non-employees of the state or a political subdivision of the state, which would include "volunteers." These forces are utilized by TEMA to respond to emergencies or disasters in Tennessee and, pursuant to the Emergency Management Assistance Compact codified at Tenn. Code Ann. § 58-2-403, to provide necessary support to sister states to reinforce emergency management agencies in areas stricken by an emergency or disaster. See Tenn. Att'y Gen. Op. 04-174 at 2 (Dec. 17, 2004).

This Office has previously opined that, under Tenn. Code Ann. § 58-2-113, TEMA is authorized but not required to compensate disaster recovery volunteers for their services. Tenn. Att'y Gen. Op. 04-174 at 2. Volunteers, however, are entitled to "be reimbursed for all actual and necessary travel and subsistence expenses to the extent of funds available." Tenn. Code Ann. § 58-2-113(b)(3). See also Tenn. Att'y Gen. Op. 04-174 at 2.

TEMA's authority to provide in its sole discretion compensation to a volunteer or to reimburse a volunteer's necessary travel and subsistence expenses "to the extent of funds available" does not elevate a volunteer's status to that of a paid state employee or a state contract vendor. See generally Savage v. Spur Distributing Co., Inc., 33 Tenn. App. 27, 30, 228 S.W.2d 122, 124 (1949) (stating the general rule that no employment contract will exist unless both parties are bound by the agreement). Moreover, given Tenn. Code Ann. § 58-2-113 specifically addresses the possible benefits available to a volunteer enlisted by TEMA, the statute's exclusion of any other benefits implies that the General Assembly did not intend to make any further benefits available to these volunteers. See Bryant v. Baptist Health System Home Care of East Tennessee, 213 S.W.3d 743, 749 (Tenn. 2006) (quoting Phillips v. Tennessee Technological Univ., 984 S.W.2d 217, 219 (Tenn. 1998) (stating the rule of statutory construction that "the mention of one subject in a statute means the exclusion of other subjects that are not mentioned").

Furthermore, as this Office has recognized, Tennessee law excludes such volunteers from eligibility for workers' compensation benefits from the State, regardless of any compensation these volunteers may receive. Tenn. Code Ann. § 8-42-101(3)(B). See also Tenn. Att'y Gen. Op. 04-174 at 2. Thus, for such individuals, general tort law is likely the only remedy available for an injury sustained during the course of an emergency response mobilization under Tenn. Code Ann. § 58-2-113. Tort law is generally defined as a "civil wrong, other than a breach of contract, for which a plaintiff may obtain a remedy, usually in the form of damages" if the proof evidences "a breach of a legal duty that the law imposes on persons who stand in a particular relation to each other." 21 Tenn. Prac. Contract Law and Practice § 1.4 (2011). These volunteers are provided the same immunity from tort liability as state employees. Tenn. Code Ann. § 58-2-113(b) (providing such immunity to all personnel of emergency management support forces).

Nor is TEMA directed by statute to reimburse a volunteer's expense for premiums paid for private accident and injury insurance. TEMA is only authorized to reimburse a disaster recovery volunteer's actual and necessary travel and subsistence expenses, to the extent funds are available. Tenn. Code Ann. § 58-2-113(b)(3). The term "subsistence" is not defined in this statute. In such cases, courts look to the dictionary definition of the word used as evidence of the meaning of the word. See State v. Edmondson, 231 S.W.2d 925, 928 (Tenn. 2007); State v. Clark, 355 S.W.3d 590, 593 (Tenn. Crim. App. 2011). The term "subsistence" generally is defined as "the minimum (as of food and shelter) necessary to support life" and "a source or means of obtaining the necessities of life." Merriam-Webster Dictionary, available at http://www.merriam-webster.com (last visited August 29, 2012). Given subsistence expenses are usually defined as food and shelter-related expenses, a volunteer's reimbursement request for private insurance would not be a valid reimbursement claim. However, in its sole discretion, TEMA could provide compensation to a volunteer to partially or fully pay for this expense. See Tenn. Code Ann. § 58-2-113(b)(3).

3-4. The responses to questions 1-2 pretermit questions 3-4.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:
Fred Denson
General Counsel
Tennessee Department of the Military
Houston Barracks,
PO Box 41502
Nashville, TN 37204-1502