Volunteers can serve in many capacities within an organization, greatly benefiting employers by bringing new energy and knowledge, and augmenting or extending the work of employees. Similarly, volunteers reap significant benefits from volunteering by gaining valuable experience, skills and contacts.
However, tourism and hospitality employers should be aware of the potential liabilities that could emerge as a result of using volunteers, in light of the requirements under the Workers Compensation Act (WCA).
“WORKER” OR VOLUNTEER UNDER THE WORKERS COMPENSATION ACT
The WCA applies generally to all “workers”. The term “worker” is defined broadly and includes virtually any individual who is paid for services rendered and does not employ other individuals. The WCA represents an insurance scheme for workers who are injured in the course of employment, providing benefits and preventing them from suing their employer. However, the WCA does not explicitly refer to volunteers. The WorkSafeBC Assessment Manual states that “volunteers or other persons not receiving payment for their services are generally not workers.” The concern for employers to consider is that if an individual is a volunteer and not a “worker” under the WCA, the individual retains the right to sue the employer for any injuries suffered in the course of performing volunteer work.
Workers’ Compensation Appeal Decisions have found that both cash and “non-cash” payments (e.g. ski lift pass, gift certificates, even food and beer) are sufficient for an individual to be considered a “worker”. However, in at least one decision, the Appeal Division of WorkSafeBC found that providing a place to live and food were insufficient consideration to turn a volunteer arrangement into an employment relationship. Nevertheless, in each case WorkSafeBC will review the specific circumstances to determine whether or not an individual is a worker or volunteer, on the basis of the nature of the relationship between the parties, the nature of the work performed, and the amount of remuneration offered in exchange for the individual’s services.
If an individual is deemed a volunteer (not a “worker” under the WCA) special insurance coverage through WorkSafeBC may be available. Employers should also carefully review their liability insurance coverage in order to ensure coverage will apply to volunteers. In the event an individual is a “worker”, rather than a volunteer, the employer must register with WorkSafeBC for insurance coverage for that individual. For more information on determining volunteer or worker status or for coverage details, employers should contact WorkSafeBC’s information line at 1-888-922-2768.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.