Disaster Volunteer Liability Issues CAJPA Fall Conference 2008

1. Disaster Volunteer Liability IssuesCAJPA Fall Conference 2008 Claire Lee Reiss, J.D., ARM, CPCU Deputy Executive Director and General Counsel Public Entity Risk Institute

2. Who are Disaster “Volunteers”? Section 2: Disaster Volunteerism • Individuals • Nonprofit organizations • Businesses • Organized volunteer teams FEMA News Photo/Ficara 9/15/2007 FEMA News Photo/Edah 6/18/2008 FEMA News Photo/Rieger 5/24/2008

3. How Do Disaster Volunteers Help? Section 2: Disaster Volunteerism Supply Chain Management Premises Mass Care Case work Shelter Operation Etc. Communications Search & Rescue Volunteer Activities Transportation Education Volunteer Management Inspections Donations Management

4. Why Does Liability Matter? Section 3: Disaster Volunteerism and the Legal System The volunteer may cause harm The volunteer may be harmed Bodily injury Personal Injury Injury Illness Property damage Wrongful acts Death Property damage Interested Parties Volunteers Employers Sponsors Organizers Supervisors Trainers Government Vehicle accidents Possible Sources of Legal Protection The law may limit the volunteer’s activities Local Law State Law Licenses Permits Federal Law Interstate Compacts Certificates Model laws

5. Legal Relief: Complicating Factors Section 3: Disaster Volunteerism and the Legal System • Differences In state laws – the primary source of protection for disaster volunteers • Delay In amending laws to provide protection • Deference of the U.S. Congress to state law on issues of liability & protection

6. The Volunteer May be Harmed Section 4: Important Issues: Harm to the Volunteer Workers’ Compensation Lawsuits • Harm to a volunteer concerns: • Anyone who may have resulting financial responsibility to the volunteer • Volunteers who mayexperience uncompensated wage loss, disability or medical expenses FEMA News Photo/Howard

7. The Volunteer May be Harmed:Workers’ Compensation Section 4: Important Issues: Harm to the Volunteer Questions to Ask: • Is anyone legally responsible to pay benefits to a disaster volunteer who is injured, killed, or becomes ill? • Who is responsible to pay benefits? • What requirements must volunteers meet to be protected? (Loyalty oath? Registration as a disaster worker?) • What triggers coverage? Is coverage limited to work during declared disasters? • Are injuries, illnesses and death all included? • What benefits are provided? Medical? Lost wages? Disability? • Are there any contingencies – i.e. must a special program be funded by the legislature? • Does exclusive remedy or immunity protect potentially liable parties from tort liability?

8. The Volunteer May be Harmed:Workers’ Compensation Possible Sources of Protection Section 4: Important Issues: Harm to the Volunteer Emergency Management & Homeland Security Acts State Workers’ Compensation Acts Federal Employee Compensation Act (Only for Federalized Volunteers) Non-statutory Injury Benefit Programs for Disaster Volunteers Note: Disaster volunteers are sometimes protected as part of a larger group referred to as “disaster workers” or “emergency workers”. Look for a definition that includes volunteers in these categories.

9. The Volunteer May Cause HarmIndividual Volunteer Liability Section 4: Important Issues: Volunteer Harm to Others Negligence Motor vehicle operation First aid Training and supervision Professional Errors & Omissions Intentional Acts Health care providers False imprisonment Architects & engineers Discrimination

10. The Volunteer May Cause Harm Individual Volunteer Liability Section 4: Important Issues: Volunteer Harm to Others Questions to Ask: • Are disaster volunteers immune from liability? • Will the state or another entity also defend and pay liability judgments against disaster volunteers? • What requirements must volunteers meet to be protected? (Loyalty oath? Registration as a disaster worker?) • What functions and activities are protected? (Drills, training and exercises, or just response?) • How broad is the scope of immunity? • Are any types of liability specifically excluded? (Gross negligence? Operation of vehicles?) • Are disaster volunteers protected if they are paid – for example by their regular employer?

11. The Volunteer May Cause Harm Individual Volunteer Liability Section 4: Important Issues: Volunteer Harm to Others Possible Sources of Protection Emergency Management & Homeland Security Acts Good Samaritan Laws Assisting a victim at the scene of an accident Often as disaster workers. Professional Licensing Laws Governmental Immunity Health care providers Federal Tort Claims Act State Tort Claims Acts Architects & engineers Emergency Management Assistance Compact Volunteer Protection Acts Volunteers working for a government or nonprofit State officers or employees deployed to anotherstate under EMAC

12. The Volunteer May Cause Harm Nonprofit and Business Organizations Section 4: Important Issues: Volunteer Harm to Others Negligence Contractual Liability Negligent “hiring” supervision retention credentialing Indemnification & hold harmless agreements Professional errors & omissions Premises liability Vicarious Liability Vehicle liability Employees Volunteers Intentional & Wrongful Acts Employee & Volunteer Injury Employment practices Discrimination Hosting volunteers Employees loaned to disaster effort

13. The Volunteer May Cause Harm Nonprofit and Business Organizations Section 4: Important Issues: Volunteer Harm to Others Questions to Ask: • Do organizations have immunity during disaster work? • Will the state or another entity also defend and pay liability judgments against an organization that provides disaster assistance? • Is liability protection for organizations limited to health care organizations? • Are organizations protected if they receive compensation? • Does law protect organizations that are working with local governments and agencies as well as the state? • Are organizations protected during exercises and drills as well as response to a declared emergency? • How broad is the scope of immunity? • Are any types of liability specifically excluded?

14. The Volunteer May Cause Harm Nonprofit and Business Organizations Section 4: Important Issues: Volunteer Harm to Others Occasional Sources of Protection Emergency Management & Homeland Security Acts Model Legislation Uniform Emergency Volunteer Health Practitioners Act Governmental Immunity Laws State Public Health Laws For public health emergencies State Volunteer Protection Acts Protection for most types of organizations is unusual; however, there is increasing protection for health care organizations during public health emergencies.

15. Limitation on Volunteer ActivitiesLicenses, Certificates and Permits Section 4: Important Issues: Limitation on Volunteer Activities Legal Sanctions for Working Without a Required License, Certificate or Permit Retired professionals Professionals responding in another state Skilled workers responding in another state or jurisdiction • FEMA News Photo/Marvin Nauman

16. Licenses, Certificates and Permits Section 4: Important Issues: Limitation on Volunteer Activities Questions to Ask: • Does the state waive or suspend license, certificate or permit requirements for authorized disaster workers? • Does the state provide temporary recognition of licenses, certificates or permits from another jurisdiction? • Does the state permit retired professionals without active licenses to provide professional assistance in an emergency?

17. Licenses, Certificates and Permits Sources of Protection Section 4: Important Issues: Limitation on Volunteer Activities Emergency Management & Homeland Security Acts Emergency Management Assistance Compact Temporary waiver Temporary recognition for members of responding state’s emergency forces Temporary recognition License, Certificate or Permit Statute Special license for retired workers (usually health care providers)