There are many issues pertaining to volunteers in New Jersey and most of them center on municipal workers. Any discussion of the topic of volunteers must begin with the definitions of employee and volunteer. For workers’ compensation purposes, an employee is one who performs work with an expectation of some form of compensation, usually but not necessarily salary. In contrast, a volunteer traditionally is one who neither expects nor receives any type of compensation for work performed. There is no workers’ compensation coverage for injuries to a true volunteer. In the municipal sector, however, the Legislature has passed several statutes which provide workers’ compensation coverage for certain volunteers when performing public duties.
Residents in municipalities often volunteer in a variety of situations. They may volunteer for a July 4th parade or perhaps participate in cleaning up trash on town property. These kinds of volunteers would not be covered for any injury. Absent special legislation, which we will discuss below, there has to be some sort of contractual relationship. In Stevens v. Allamuchy Township, a 1944 case, the Township Treasurer was given a choice of resigning his township position or giving up his job as postmaster of a local post office. So he gave up his township position, and then the Township appointed his wife as the official Treasurer. But Mr. Stevens kept doing the actual job duties of treasurer. His wife signed all the township checks and got paid by the township. Mr. Stevens was injured working at the township and filed a workers’ compensation claim petition. The Court ruled that he had no official employment relationship with the Township, and therefore his injury was not covered.
Questions often arise about community service workers who may perform duties for a municipality. To clarify the workers’ compensation issue, the Legislature passed NJSA 59:7A-1 in 1991. That section provides that a county or municipality shall not be subject to any law “governing the provision of labor, workers’ compensation, conditions of employment or insurance with respect to an offender performing community service, except for conduct by a municipality which is willful, wanton, or grossly negligent or the negligent operation of a motor vehicle.”
The majority of volunteer issues in New Jersey cases stem from volunteers who receive no payment whatsoever but who are in fact covered for workers’ compensation by statute. These tend mostly to fall within the class of public safety officers and public officials. There are several statutory provisions that are important to consider. NJSA 34:15-43 provides workers’ compensation coverage to certain public officials who might otherwise be considered to be volunteers:
- Elected and appointed officials;
- Board of education members;
- Volunteer firefighters, first aid or rescue squad workers;
- Reserve or auxiliary police officers
For workers’ compensation coverage to attach, these workers must be injured doing public duty or performing official duties when the injury occurs.
Extensive Coverage For Volunteer Firefighters And Rescue Squad Workers
The statute provides very broad protection for volunteer firefighters and rescue squad workers, including coverage in the following scenarios:
- Participating in any authorized construction such as installation, alteration, maintenance or repair work upon the premises, apparatus, or other equipment owned or used by the fire company, first aid or rescue squad;
- Participation in any authorized public drill, showing, exhibition, fund raising activity or parade;
- Rendering assistance in case of fire
Since there is workers’ compensation coverage in these situations, how much does the volunteer get paid? Does it matter that the volunteer may not even have another job? Some elected and appointed officials, including school board members, don’t get paid at all. So if they are injured doing public duty they would likely receive minimum rates for lost time and for permanency. The minimum rate for lost time in 2021 is $258 per week. The minimum rate for permanent partial disability is a mere $35 per week.
At the other end of the spectrum are volunteer public safety workers. The Legislature many years ago passed a law that provided for maximum rates for them. For a 2021 accident the maximum rate is $969 per week. Volunteer firefighters, first aid, rescue squad workers, ambulance drivers, special reserve and auxiliary police officers are eligible for maximum rates while out of work and not yet at maximal medical improvement from a work injury.
Consider this example: Janet has no employment outside her volunteer firefighting work. She lives in town and she is raising her family. On February 10, 2021, she responds to a fire in the township and suffers serious burns. Until she reaches maximal medical improvement for her treatment, Janet will receive $969 per week in tax free benefits. It doesn’t matter that she had no outside employment.
Suppose, however, that Janet does have a regular paid weekly job in addition to the volunteer position. If she returns to the paid job while treating for the above burns, her wage loss benefits would end. Her medical benefits would continue until maximum medical improvement. In both situations she could file for permanent partial disability benefits.
Presumptions of Compensability For Certain Volunteers
For municipal volunteers there are a number of presumptions that do not apply to anyone in the private sector. Under NJSA 34:15-43.2, volunteer firefighters receive a presumption of compensability for respiratory diseases that manifest during active service. This provision has been extended by case law to paid firefighters as well. What this means is that the burden is on the employer to disprove that the respiratory disease is work related. The judge must presume that the respiratory disease is work related. The public entity can rebut the presumption by proving more likely than not that the cause of the respiratory disease is not work related – perhaps from heavy cigarette smoking.
A similar provision exists for volunteer firefighters, special, auxiliary or reserve police and rescue squad workers who suffer a heart attack or stroke while responding to a public safety or medical emergency. This presumption is contained in NJSA 34:15-7.3. This covers both injury and death, as does the provision on respiratory illnesses above.
In 2019 the Thomas P. Canzanella Twenty First Century First Responders Protection Act was passed. This is a fairly dense piece of legislation with several important provisions. This law provides that public safety workers, including volunteers, shall have a presumption of compensability if exposed to communicable disease, epidemics, pathogens, or biological toxins. The definition of public safety worker covers not only police, fire and EMT workers, but also members of a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, basic or advanced medical technician of a first aid or rescue squad, or any nurse responding to a catastrophic incident and directly involved and in contact with the public during such an incident.
The most expansive provision of the Canzanella Act provides a presumption to all firefighters, volunteer and paid, whose injury is caused by cancer, including leukemia, if the firefighter has completed not less than seven years of service, provided that the firefighter is not more than 75 years of age. In addition, the firefighter who is diagnosed with cancer long after retirement may file a workers’ compensation cancer presumption claim so long as it is filed within 20 years after retirement and not over age 75. The presumption of compensability of the cancer means that the municipality must prove more likely that the cancer was not related to work. Again, the burden rests on the employer.
Other public safety workers, paid and volunteer, have the presumption in cancer cases as well under the Canzanella Law, but if they are not firefighters they must prove that the cancer manifested during their years of service to have the presumption. Under both provisions the municipal volunteer or paid public safety worker must prove exposure to a carcinogen during employment. As noted above a volunteer firefighter could contract cancer 19 years post retirement and still be protected by the presumption of compensability. A police officer would not receive the presumption in that situation.
The most recent presumption in New Jersey law concerns Essential Employees who contract COVID-19. This law borrowed the definition of public safety workers directly from the Canzanella Law. There are many kinds of Essential Employees, both public and private sector, but for purposes of this article it is noteworthy that public safety volunteers also benefit from the presumption of compensability of COVID-19 if their disease manifested between March 9, 2020 and July 3, 2021 when the Governor declared the public health emergency to have ceased. A presumption relieves the covered volunteer from having to identify the source of the virus. This reflects the fact that police officers and EMTs, for example, have countless encounters with the public during the week and would likely never know the source of the virus. The burden rests on the employer to show more likely than not that the exposure did not arise from work.
As one can see, the patchwork of laws that have been passed over many years in respect to statutorily protected volunteers for workers’ compensation purposes can be fairly complicated. The number of municipal volunteers and paid public safety officers who file under presumption laws has risen sharply in light of both the Canzanella and the COVID-19 Essential Employee laws. Defense lawyers are learning to muster the necessary evidence to disprove a statutory presumption of compensability under these two laws but no complete trials have occurred yet.
John H. Geaney, Esq.
Capehart Scatchard