Federal OSHA coverage of volunteer firefighters

April 2, 1996
Matt Lipson
San Luis Obispo
Fire Association
[Recipient address omitted]
Dear Mr. Lipson:
This is in response to your telephone call of March 27, in which you requested information concerning voluntary/reserve/apprentice firefighters who are not paid.
Firefighters are generally public employees (employees of a State, county or city). The Occupational Safety and Health Administration (OSHA) does not cover public sector employees, paid or otherwise. However, public employees are required to be covered in States that have an OSHA approved State plan. Whether volunteer firefighters would be covered would depend upon State law and policy.
Since California has an approved State plan, public employees of the city of San Luis Obispo are covered by Cal-OSHA. You may wish to write to Cal-OSHA at the following address for a determination:

[Division of Occupational and Health
455 Golden Gate Avenue, 10th Floor
San Francisco, CA 94102
Phone:(415) 703-5100
Fax: (415) 703-5135]

Since some States cover volunteer firefighters under their workers compensation laws, you may also wish to contact the California Labor Commissioner to find out if unpaid firefighters are covered under California's workers compensation laws.
Two U.S. Supreme Court cases (neither case involved occupational safety and health), that discuss the criteria to be considered in determining the existence of a master-servant (or employer-employee) relationship in common law, are Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318, 112 S.Ct.1344, 117 L.Ed2d 581 (1992) and Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166 (1989). The cases held that the following criteria are to be considered in determining whether there is an employer-employee relationship.

1. Right to control the manner and means by which work is accomplished
2. The level of skill required to perform effectively
3. Source of required instruments and tools
4. Location of work
5. Duration of relationship between parties
6. The right of the employer to assign new projects to the worker
7. The extent of the worker's control over when and how long to work
8. Method of payment
9. The worker's role in hiring and paying assistants
10. Whether work is the regular business of the employer
11. Whether the employer is in business
12. The provision of employee benefits
13. The tax treatment of the worker

The Court also cited section 220(2) of the Second Restatement of Agency (1958) which describes factors that indicate a master-servant relationship and held that all of the factors of the relationship must be weighed and assessed with no one factor being decisive.
Many temporary, leased, and volunteer workers are exposed to the same hazards as other people in the workplace whose status as an "employee" is certain. The status of volunteers and others has not yet been clarified by OSHA. The employer-employee relationship is heavily fact-based; therefore each situation is evaluated individually on a case-by-case basis. Following is a partial list of jobs which utilize volunteers in the same working environments with paid employees, who are protected by OSHA (or State-OSHA) regulations (while the volunteers are not).

1. Volunteer firefighters
2. Emergency medical technicians
3. Candy striper and other hospital volunteers
4. Medical professionals giving pro bono service
5. Students training in workplaces
6. Ski patrol volunteers
7. Lifeguards
8. Concerned citizens assisting on oil spill clean ups
9. Child care volunteers (i.e., with AIDS babies)
10. Geriatric care volunteers
11. Parents in co-op situations who are required to administer first aid
12. Volunteer construction workers (i.e., Habitat for Humanity, and hurricane/earthquake clean-ups).

If you have any questions please contact [the Office of General Industry Enforcement at (202) 693-1850].
Sincerely,
Raymond Donnelly, Director
[Office of General Industry Enforcement]
[Corrected 10/22/2004]