Many non-profit organizations rely on volunteers in order to successfully service the community. However, should these volunteers be covered under the workers’ compensation policy or liability policy?

If they fall under your liability policy, the claim might be denied due to the fact that the injury occurred while “working” and there is a concern whether a volunteer’s legal rights would be violated by opening a liability claim vs. a workers’ compensation claim.

The key really depends on remuneration and benefit to the employer. If the WCAB finds that the employer benefits from a volunteer’s services, the person is presumed to be an employee. Then the burden shifts to the employer, in this case the non-profit entity, to prove applicant is a volunteer not entitled to workers’ compensation benefits.

According to California Law of Employee Injuries & Workers’ Compensation (Hanna), “there is a statutory presumption that any person rendering service for another, other than as an independent contractor or in some other capacity that is expressly excluded under the workers’ compensation law, is an employee for purposes of that law. Whether such a person falls within an exclusion from coverage is a matter of affirmative defense. The presumption is intended to extend the employer-employee relationship to all borderline situations involving the rendition of service, including those where the contention of ineligibility for the proper employment status is either not raised or is not adequately established.

“Thus, in each instance, employee status becomes a question of fact, the outcome depending on the presentation of proof sufficient to establish rendition of service in an excluded status or under conditions that fall short of establishing a contract of hire. For example, in one case the Appeals Board applied the LC 3357 presumption of employment to find that an injured worker was an employee of an uninsured and unlicensed roofing subcontractor on the date of his injury, when the worker showed that he was working on a job for the subcontractor at the time of injury, that he had an ongoing interim working relationship with the subcontractor, and that he was paid for his work on the day of his injury. The subcontractor’s testimony that the worker had been terminated prior to his injury was insufficient to rebut the presumption, given the WCJ’s finding that the subcontractor’s testimony lacked credibility.

“The applicable standard of proof to overcome the presumption of employee status is a preponderance of the evidence standard. For this purpose, ‘preponderance of the evidence’ means that evidence that when weighed with that opposed to it, has more convincing force and the greater probability of truth.

“The general rule is that a volunteer who renders wholly gratuitous services is not an ‘employee’ for purposes of the workers’ compensation law, unless a special statutory provision is made for the volunteer’s undertaking. This typically includes volunteer firefighters or other such statutorily enumerated jobs unlikely to include an non-profit entity employee.

“However, non-monetary consideration for an employment agreement may take many forms, and the courts will look through the form of remuneration to determine whether consideration has been paid for services rendered. The compensation need not be in the strict form of wages or money.

“In general, the term “employee” as used in the workers’ compensation law excludes any person performing voluntary service for a public agency or a private, nonprofit organization, who receives no remuneration for his or her services other than meals, transportation, lodging, or reimbursement for incidental expenses. However, a person who performs voluntary service without pay for a public agency as designated and authorized by the agency’s governing body is, on the adoption of a resolution by that governing body so declaring, deemed to be an employee of the agency for purposes of the workers’ compensation law while performing that service. For purposes of this provision, the term ‘voluntary service without pay’ includes services performed by any person who receives no remuneration other than meals, transportation, lodging, or reimbursement for incidental expenses.”

One approach in such a situation one option might be to litigate the volunteer/employee issue to a legal conclusion and decision by the Workers’ Compensation Appeals Board. If decided adversely to applicant (i.e., he or she is found not to be an employee) then the matter might then be tendered to the liability carrier for coverage. Conversely if decided adversely to the non–profit entity (i.e., he or she is found to be an employee) of course the workers’ compensation policy would afford the non-profit entity coverage.

I would recommend that should the non-profit entity wish the volunteers to be covered by workers’ compensation that the entity adopt a resolution by its governing body so declaring, deeming its volunteers to be employees of the agency for purposes of the workers’ compensation law while performing services for it. Then I would recommend the entity approach its workers’ compensation insurance carrier and ensure that the policy includes this coverage.

If it does not, the entity needs to ensure its liability coverage will afford it coverage in this situation. I recommend the entity ensure there is no gap in coverage and that this is confirmed in writing with its insurers should an injury occur.

It is important to know before an incident or injury whether one or the other insurance might not provide coverage. It is essential that this issue is resolved at the coverage level so there is insurance coverage in case an unfortunate incident of a volunteer injury does occur.