Consider location of services, nature of work, compensation
Volunteers matter. Without them, Canadian society would suffer. Some volunteers carry out their work outdoors in safety sensitive positions performing dangerous work; others, indoors in low-risk activities. Some volunteer for very sophisticated, large and experienced not-for-profit organizations, while others take it upon themselves to help out their neighbours and communities in response to natural disasters. In either scenario, the greater the potential and severity of harm, the greater the obligations on the volunteers providing the services and those supervising them.
It’s important to understand there is risk for the employer, both from an OHS regulatory perspective, in some instances, and from a civil liability or lawsuit perspective, in all instances. The amount of risk depends on the applicable law where the services are provided. You need to know the laws in your province or territory, especially the definition of “worker.”
What the volunteers are doing changes the risk profile. There are a wide range of possible health and safety risks. Where possible, position descriptions and duties should be clearly set out and be the basis on which a hazard assessment is completed.
Whether or not the volunteers are being compensated is key. If they are, and not just being reimbursed for expenses or receiving a nominal benefit, they are “workers” and the organization they are providing the services to is the “employer.” In British Columbia, Workers’ Compensation Appeal Tribunal decisions have found that both cash and non-cash payments (such as ski lift pass, gift certificates, even food and beer) are enough for an individual to be considered a “worker.”
There are relatively few cases where an organization has been charged for the death or injury of a volunteer. There are many more cases where a non-worker member of the public has been injured and the organization that caused it has had orders issued against it, been charged, prosecuted or otherwise subject to punitive action. The principles in those cases apply to situations involving volunteers.
While there has not yet been a successful Criminal Code prosecution of a volunteer or the organization that they are providing services to, there is the potential for one. R. v. Port Colborne (City), R. v. Harrison and Ontario (Ministry of Labour) v. Meaford and District Fire Department all involve emergency responses and the death or serious injury of one or more volunteer firefighters. In all three cases, multiple charges were laid, but none resulted in a successful prosecution.
What rights and responsibilities do volunteers and their organizations have? It depends on where the services are being provided. In Ontario, under the Occupational Health and Safety Act, a worker is defined in part as being a “person who performs work or supplies services for monetary compensation.” Although this definition does not include volunteers, the Ontario Ministry of Labour states that employers still have some responsibility for the health and safety of people visiting or helping out in their workplaces.
In contrast, Alberta’s Occupational Health and Safety Act applies to any worker engaged in an occupation. The act states that “for Alberta’s OHS legislation to apply, a worker needs to have an employer. The employer in this case is the organization on whose behalf the volunteer provides some type of voluntary service. When assessing a particular situation to determine if there is a worker-employer relationship, three conditions need to be met: the organization requests the volunteer’s participation; the organization organizes the volunteer’s activities; and the volunteer provides a service to the organization (such as) teaching a skill to students or staff, picking up garbage in an area, building a house for the organization, etc.”
Tips for employers
The more direction and control an organization has over the volunteer, the greater the legal obligations. The riskier the activity that the volunteer is participating in, the greater the potential for a prosecution and fine or penalty. It is for this reason that services provided for free are still not going to help the organization in the long run if the risks are not properly managed on the front-end.
Training is fundamentally important. Volunteers, like all other workers, should be trained to safely carry out their work. This includes understanding, not just knowing, the hazards associated with the work and the controls in place to address them. Personal protective equipment (PPE) must be clearly communicated as being required and either be provided or be a mandatory pre-condition to work.
Volunteers need to be monitored and supervised for success, especially where the services they are providing are dangerous or otherwise risky in terms of potential bad outcomes.
The employer must enforce reasonable rules. If a volunteer won’t or can’t safely provide services to an organization in the role that they wish to do so, consider asking her to take on a new role or refer her to another organization. Be especially vigilant where there are young workers providing volunteer services. Their lack of life and work experience — and the risk that represents — warrants it.
Keep good records of the services performed and who they were performed by, including training records, references, incident reports and any performance assessments or benefits provided. If there is an incident, complaint or other followup required, these documents can form the basis of a due diligence defence. This is especially important where pre-screening is required, such as criminal record checks for volunteers working with vulnerable persons. Employers should interview and pre-screen before a volunteer starts. Her education, training, experience and suitability are all relevant factors to consider when determining if she will be a good addition to your team.
This article originally appeared in the June/July 2017 issue of COS.
