Environmental & Safety Law Update

EPA Adopts Significant Revisions to Underground Storage Tank Regulations

Posted in Environmental Compliance, RCRA

By Philip L. Comella and Craig B. Simonsen

iStock_000049177646MediumThe U.S. Environmental Protection Agency has promulgated significant new provisions both to its 1988 underground storage tank (UST) regulations and to its 1988 state program approval (SPA) regulations. 80 Fed. Reg. 41566 (July 15, 2015). This is the first major revision to the federal UST regulations since 1988.

The revisions to the UST technical regulations found in 40 CFR part 280 increase the EPA’s emphasis on “properly operating and maintaining UST equipment.” EPA has added new operation and maintenance requirements and addressed UST systems deferred in the 1988 UST regulation. The changes include:

  • Adding secondary containment requirements for new and replaced tanks and piping.
  • Adding operator training requirements.
  • Adding periodic operation and maintenance requirements for UST systems.
  • Adding requirements to ensure UST system compatibility before storing certain biofuel blends.
  • Removing past deferrals for emergency generator tanks, airport hydrant systems, and field-constructed tanks.
  • Updating codes of professional practice.

The 2015 state program approval amendments update the SPA requirements found in 40 CFR part 281, and incorporate the changes to the UST technical regulation found in 40 CFR part 280. Thirty-eight SPA states and the District of Columbia and Puerto Rico currently have SPA status and have three years to reapply in order to retain their SPA programs.

Useful and related tools provided by the Agency are a “Comparison of 2015 Revised UST Regulations and 1988 UST Regulations,” a “Red Line Strikeout of 40 CFR part 280 and 40 CFR part 281,” and its revised and updated “Musts For USTs” guidance document.

Facilities with regulated USTs should review carefully the new regulations to ensure their systems, processes, procedures, and training materials and systems are compliant with newly applicable requirements.

The final rule is effective October 13, 2015.

OSHA Seeks Work-a-Round to Issuing Citations for Recordkeeping Violations More Than Six Months Old

Posted in Investigations/Inspections, OSHA Enforcement, OSHA Litigation

By Ilana R. Morady and Craig B. Simonsen

Construction Inspector 4OSHA, through a rulemaking, is seeking to build a work-a-round to a D.C. Circuit Court of Appeals opinion on issuing citations for recordkeeping violations that are more than six months old. 80 Fed. Reg. 45116 (July 29, 2015).

We had blogged previously about the D.C. Circuit Court of Appeals opinion in AKM LLC v. Secretary of Labor, 675 F.3d 752, 2012 WL 1142273 (DC Cir., 2012). In that case the Occupational Safety and Health Administration (OSHA) had issued certain recordkeeping citations and penalties for alleged errors on an OSHA 300 log more than six months after the alleged erroneous entries were made on the log. The Court found that that the citations were untimely, and were vacated.

The question before the Court in AKM LLC was whether the Occupational Safety and Health Act’s (OSH Act) recordkeeping requirement, in conjunction with the five-year regulatory retention period, permits OSHA to subvert the OSHA Act’s six-month statute of limitations. Because the Act says that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), the Court agreed with the employer, Volks Constructors (Volks), that the citations were untimely, and vacated them.

OSHA had cited and fined Volks for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was at least six months after the last unrecorded injury occurred.

The Court in AKM LLC summed it up this way: “The Act clearly renders the citations untimely, and the Secretary’s argument to the contrary relies on an interpretation that is neither natural nor consistent with our precedents. The petition for review is granted and the citations are vacated.” This AKM LLC decision had raised serious questions about OSHA’s ability to issue citations for past violations, not only under the recordkeeping standard, but under other OSHA standards as well.

In response, now OSHA is proposing to amend the recordkeeping regulations to “clarify” that the duty to make and maintain accurate records of work-related injuries and illnesses would be an ongoing obligation for five years after a record should have been made on the log. “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so.”

Under the AKM LLC decision, employers who have been cited for recordkeeping violations that occurred more than six months before OSHA issued the citation have had a viable statute of limitations defense. OSHA’s proposed rule threatens that defense and is inconsistent with the AKM LLC finding that “nothing in the [OSH Act] suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years.”

Written comments on the proposed rule are due to OSHA Docket No. OSHA–2015–0006 on September 28, 2015.

Cal/OSHA District Offices Taking Expansive View of Injury/Illness Reporting Requirements

Posted in California, OSHA Compliance

By Mark A. Lies, II and Ilana R. Morady

iStock_000004162096LargeAs many employers know, California frequently does things a little differently than other jurisdictions. Cal/OSHA is no exception.

When it comes to injury/illness reporting, Cal/OSHA (a.k.a. “the Division”) requires “any serious injury or illness, or death” to be reported within 8 hours to the nearest District Office. Serious injury or illness means any incident requiring inpatient hospitalization in excess of 24 hours (for other than medical observation) or in which an employee suffers a loss of any member of the body or any serious degree of permanent disfigurement.

Cal/OSHA’s published guidance explains that this reporting requirement applies to “work-related or suspected work-related” incidents. Certain Cal/OSHA District Offices, however, are taking the position that all serious injuries or illnesses and deaths must be immediately reported, regardless of whether they are work-related.

This is a significant departure from federal OSHA reporting requirements, which only apply to work-related incidents. It means that employers in California face potential citations if they do not report incidents such as heart attacks or brain aneurisms that have no relation to the work environment.

While it may seem unnecessary and illogical to have to report non-work-related incidents to the agency, a recent case decision from the Cal/OSHA Occupational and Safety Appeals Board confirms that Cal/OSHA’s broadly worded reporting requirement — “Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment”– does not limit reports to work-related incidents.

The Board decision (In the Matter of the Appeal of Honeybaked Hams, Docket 13-R3D1-0941, June 25, 2014) upholds a citation issued to the employer who did not report the death of an employee who suffered a brain aneurism. The Board stated that the reporting regulation, 8 CCR 342, “requires reporting of employee injuries, illnesses and deaths which occur on an employer’s premises, even if they are not work related.” The Board acknowledged Cal/OSHA’s guidance to the contrary, but found that the guidance cannot be relied upon by employers.

This is of course very important information for all California employers covered by Cal/OSHA. What is concerning, however, is that the various Cal/OSHA’s District Offices are apparently not all on the same page. We are seeing clients who have had Cal/OSHA tell them they must report non-work-related incidents, and other clients who have had Cal/OSHA actually refuse to accept the information of reports that do not involve work-related incidents. Either way, Cal/OSHA will not investigate incidents that are unrelated to the work environment. However employers must be aware that they should still be reporting these incidents and may be subject to citation if they fail to do so.

DHS Chemical Facilities Take Note GAO Suggested Need For Enhanced Enforcement

Posted in Chemical Safety, Emergency Planning, Environmental Compliance, OSHA Compliance

By Andrew H. Perellis and Craig B. Simonsen

Power Lines and Pulp Mill PollutionThe U.S. Government Accountability Office (GAO) has just issued a report on Critical Infrastructure Protection with a finding that Department of Homeland Security (DHS) action is needed to verify chemical facility information and to better manage its compliance process. Report to Congress, GAO-15-614 (July 2015).

Risk Level for Facilities

The Report states that since 2007, DHS has identified and collected information from approximately 37,000 chemical facilities under the Chemical Facility Anti-Terrorism Standards (CFATS) program, and categorized approximately 2,900 of those as high-risk based on the collected data. The Report indicates, though, that DHS had used unverified and self-reported data to categorize the risk level for facilities evaluated for a toxic release threat. DHS defined a toxic release as one where if released, the chemicals could harm the surrounding populations.

One key input for determining a facility’s toxic release threat is the “Distance of Concern” that facilities report. That distance would be the area in which exposure to a toxic chemical cloud could cause serious injury or fatalities from short-term exposure. DHS required facilities to calculate the distance using a web-based tool and by following DHS guidance.

Following the DHS guidance and using a generalizable sample of facility-reported data in the DHS database, the GAO “estimated that more than 2,700 facilities (44 percent) of an estimated 6,400 facilities with a toxic release threat misreported the distance.” GAO suggests that by verifying that the data DHS used in its risk assessment, it could better ensure it has identified the high-risk chemical facilities.

Chemical Facilities Compliance Implementation

While DHS began conducting compliance inspections in September 2013, according to the GAO, it did not have a documented processes and procedure for managing the compliance of facilities that had not implemented planned measures outlined in their site security plans. As a result, GAO found that almost half (34 of 69) of facilities inspected as of February 2015 “had not implemented one or more planned measures by deadlines specified in their approved site security plans and therefore were not fully compliant with their plans.”

Additionally, GAO found variations in how DHS addressed 34 facilities, such as how much additional time the facilities had to come into compliance and whether or not a follow-on inspection was scheduled. While the variations may have corresponded with the DHS’s case-by-case approach, GAO suggested that having documented processes and procedures would ensure that DHS could manage noncompliant facilities and close security gaps in a timely manner. Also, because DHS still needed to inspect about 2,900 facilities, having documented processes and procedures could provide DHS with a “more reasonable assurance that facilities implement planned measures and address security gaps.”

OSHA Directive on Inspection Procedures for the Hazard Communication Standard

Posted in Chemical Safety, OSHA Compliance

By Meagan Newman and Craig B. Simonsen

iStock_000060649768MediumOSHA has just announced a compliance Directive on “Inspection Procedures for the Hazard Communication Standard,” CPL 02-02-079 (July 9, 2015).

We had previously blogged that June 1, 2015 was the deadline for compliance with the all new hazardous communication (HazCom) standard (29 CFR section 1910.1200) (HCS 2012) requirements, with exceptions for chemical distributors, and for employers to update workplace labeling and hazard communication programs. 77 Fed. Reg. 17574 (March 26, 2012). Also, earlier this year OSHA had issued an Enforcement Guidance on the June 1, 2015 effective date. The Enforcement Guidance applied only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.

This new Directive outlines revisions to the HCS, including the revised hazard classification of chemicals, standardizing label elements for containers of hazardous chemicals, and specifying the format and required content for safety data sheets. According to OSHA, it explains “how the revised standard is to be enforced during its transition period and after the standard is fully implemented on June 1, 2016.”

Notably, the Directive provides OSHA inspectors with a useful appendix (“J”) on “Other Standards to Consider When Citing Chemical Exposures with No PEL”. This provision has been an issue over the last couple of years as OSHA seeks to work around the regulatory process needed to establish more stringent permissible exposure limits (PELs) – so that it may regulate the unregulated. We previously blogged about the Agency’s “Annotated Permissible Exposure Limits and Chemical Toolkit,” through which OSHA “recommended” that employers “voluntarily” comply with lower chemical permissible exposure limits (PELs) than those that currently existed in the OSHA regulations.

In the Directive OSHA also clarified its position relating to consumer products:

It is the Agency’s policy not to issue citations for consumer products unless the [inspector] can document that the product was used in the workplace in a manner not intended by the manufacturer or the frequency and duration of use results in exposures that are significantly greater than those experienced by a normal consumer. Citations may only be issued in cases where the [inspector] can document that the use falls outside of the 1910.1200(b)(6)(ix) exemption.

Emphasis in the original.

Employers are encouraged to look closely at their HCS policies, procedures, and training programs to ensure compliance with this new Agency Directive.

OSHA Enforcement Memo and Interim Policy on the Process Safety Management Retail Exemption

Posted in Chemical Safety, OSHA Compliance

By Meagan Newman and Craig B. Simonsen

bottleThe Occupational Safety and Health Administration issued yesterday an enforcement memo (Memo) and an interim policy (Policy) on the PSM retail exemption.

Tho Memo revised OSHA’s interpretation of the exemption of retail facilities from coverage of the Process Safety Management of Highly Hazardous Chemicals (PSM) standard (29 CFR 1910.119). The revision, according to OSHA, is in accordance with the President’s August 1, 2013, Executive Order 13650, Improving Chemical Facility Safety and Security (EO). We had previously blogged about the EO.

While OSHA in its PSM rule had not defined the term “retail facility,” the preamble to the final standard explained that chemicals in retail facilities (“e.g., gasoline stations”), are sold in “small volume packages, containers, and allotments, making a release unlikely.” (57 Fed. Reg. 6356, 6369 (February 24, 1992)). Following the adoption of the PSM standard OSHA issued a series of interpretation letters and a PSM compliance directive (CPL 02-02-045) that, according to the Memo “interpreted the exemption more broadly.” Under the interpretations an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user” (the “50 percent test”).

In a turn-around now, though, OSHA claims that the 50 percent test has “no relationship to OSHA’s original intent for application of the exemption, nor is it consistent with either the commonly understood meaning of retail establishment or the definition recognized by the U.S. Department of Commerce in the NAICS Manual.” For instance, OSHA believes that the 50 percent test allows employers who sell or distribute large, bulk quantities of highly hazardous chemicals directly to end users to claim the exemption, even if the end users are themselves commercial establishments.

OSHA through this Memo has now withdrawn and rescinded all prior policy documents, letters of interpretation, and memoranda related to the retail exemption and the 50 percent test. According to the Memo OSHA will now interpret the retail facilities exemption as follows:

Only facilities, or the portions of facilities, engaged in retail trade as defined by the current and any future updates to sectors 44 and 45 of the NAICS Manual may be afforded the retail exemption at 29 CFR 1910.119(a)(2)(i).

In OSHA’s related Interim Enforcement Policy, it indicated that for the first six months following the issuance of the Memo (July 22, 2015), OSHA will “focus its resources on providing compliance assistance to affected employers, engage key industry stakeholders, and will inform its State On-Site Consultation Projects that during this period, requests from newly covered employers should be their highest priority for receiving an on-site visit.”

For employers, and especially retail establishments, what this means now is that an OSHA inspector may recommend issuance of a citation for violations of the PSM Standard after determining that the employer’s primary NAICS related to the sale of “highly hazardous chemicals” is something other than a retail trade, as defined in NAICS sectors 44 or 45, and PSM coverage is otherwise established.

Use this six month interim enforcement period to examine and bring all of your facilities into compliance with the “revised” standard.

Judge Affirms OSHA Citation in Death of Healthcare Worker Killed by Mentally Ill Client

Posted in Investigations/Inspections, OSHA Litigation, Workplace Violence

By Mark A. Lies, II and Craig B. Simonsen

shutterstock_171692768An Occupational Safety and Health Review Commission Administrative Law Judge has determined that a healthcare provider company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012.

According to the OSHA news release, the healthcare client had severe mental illness and a violent criminal history. The social service coordinator was on-the-job for approximately three months. The employee “had prior meetings with the man and recorded in her case notes that she was uncomfortable being alone with him.”

While the Judge’s decision is not yet available, the release indicated that a social service coordinator visited dangerous and violent clients in their homes and coordinated case management. To perform mental and physical health assessments, they would sometimes transport clients in their vehicle.

OSHA’s citation, including $10,500 in proposed penalties, indicated that a serious safety violation was issued for exposing employees to incidents of violent behavior by a patient that resulted in death. “A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.” The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken “precautions to prevent injury by hiring and training its employees appropriately.”

This decision is very timely in view of another recent OSHA action relating to the healthcare industry. Last month released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence (WPV) is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that WPV is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, WPV will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers may be certain that they will also be inspected by OSHA inspectors as healthcare WPV incidents occur, regardless of the setting. The Guidance is effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.

Healthcare Employers to Get Even More Attention from OSHA

Posted in Investigations/Inspections, OSHA Compliance, Workplace Violence

By James L. Curtis and Craig B. Simonsen

shutterstock_58920859OSHA has released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to musculoskeletal disorders, workplace violence, bloodborne pathogens, tuberculosis, and slips, trips, and falls.

The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016. OSHA’s Administrator, Dr. David Michaels, commented on the Guidance that “workers who take care of us when we are sick or hurt should not be at such high risk for injuries — that simply is not right.” “The most recent statistics tell us that almost half of all reported injuries in the healthcare industry were attributed to overexertion and related tasks. Nurses and nursing assistants each accounted for a substantial share of this total.”

As noted above, the Guidance main focus areas include musculoskeletal disorders (MSDs), workplace violence (WPV), bloodborne pathogens (BBP) and tuberculosis (TB), and slips, trips, and falls (STFs).

Musculoskeletal Disorders and Overexertion

According to OSHA, the Bureau of Labor Statistics data for 2013 show that 44 percent of reported injuries within the healthcare industry were attributed to overexertion-related incidents. The Guidance remarks that the rate “equates to almost one and a half times the total MSD rate (33 percent) for all reported injuries for all industries.” Nurses and nursing assistants accounted for a substantial share of the total. Accordingly, MSDs will be a substantial focus of OSHA’s inspections.

Workplace Violence

Workplace Violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that WPV is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, WPV will be evaluated in every inpatient healthcare OSHA inspection.

Bloodborne Pathogens and Tuberculosis

OSHA’s enforcement data indicated that 29 CFR 1910.1030, the Bloodborne Pathogens Standard, is one of the most frequently cited standards in nursing and residential care facilities. Additionally, employees working in nursing and residential care facilities have been identified by the Centers for Disease Control and Prevention as having the highest risk for exposure to TB due to the case rate of disease among persons 65 years of age. Accordingly, BBP and TB will continue to receive substantial focus under the National Emphasis Program in every inpatient healthcare OSHA inspection.

Slips, Trips, and Falls

While not typically the source of serious injuries, OSHA indicates that injuries from STFs were a driving cause of occupational injury and illness cases reported in nursing and residential care facilities. “Taken together, overexertion together with slips, trips, and falls accounted for 68.6% of all reported cases with days away from work.”

Other Concerns

In addition to its focus on musculoskeletal disorders, bloodborne pathogens and tuberculosis, workplace violence, and slips, trips, and falls, the Guidance indicates that inspectors should also be watchful for:

  • Exposure to multi-drug resistant organisms (MDROs), such as Methicillin-resistant Staphylococcus aureus (MRSA).
  • Exposures to hazardous chemicals, such as sanitizers, disinfectants, anesthetic gases, and hazardous drugs.

The Guidance is effective immediately. The Guidance notes that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics. Make note, because OSHA inspectors certainly will.

Supreme Court: EPA Must Consider Cost Of Implementing Regulations

Posted in CAA, Environmental Enforcement, Environmental Litigation

By Andrew H. Perellis and Patrick D. Joyce

Supreme CourtIn a 5-4 ruling, the U.S. Supreme Court today ruled that the EPA acted unreasonably when it refused to consider the cost of implementing its Mercury and Air Toxics Standard (MATS).

The MATS rule, issued in 2012, established emissions limits from power plants for mercury, filterable particulate matter, and hydrogen chloride.  U.S. power plants were required to come into compliance with the MATS rule by April 16 of this year, but 170 coal-fired power plants received a one year extension to either install control technology or shut down.

EPA estimated that it would cost the power industry nearly $9.6 billion per year in compliance costs while providing a pollution reduction benefit of only $4 to $6 million per year.  However, EPA said that Section 112 of the Clean Air Act only required it to consider compliance costs when establishing an appropriate emission level but not when deciding whether to regulate in the first place.

Justice Scalia, writing for the majority, found that the words “appropriate and necessary” under Section 112 required EPA to consider the costs of the regulation at the initial stages and that “EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary.”  Justice Scalia further said “Against the backdrop of [] established administrative practice, it is unreasonable to read an instruction to an administrative agency to determine whether ‘regulation is appropriate and necessary’ as an invitation to ignore costs.” Slip opinion pp 7-8.

Justice Scalia wrote that Section 112 requires EPA to consider “all of the relevant factors” and that “agencies must operate within the bounds of reasonable interpretation. EPA strayed far beyond those bounds when it read §7412(n)(1) to mean that it could ignore cost when deciding whether to regulate power plants.”  Slip op. p. 6.

Writing for the minority, Justice Kagan said that Congress had allocated broad authority to EPA to determine whether to regulate an industry and that EPA had properly considered costs at a later stage in the regulation, something EPA has done in other rules.

Nonprofit Volunteers: We’ll Work For Free … Unless We Get Hurt

Posted in OSHA Compliance, OSHA Litigation

By Ofer Lion

injured businessman in bandages and crutches with dollar pile and falling money vectorIf your company is a nonprofit or has a nonprofit foundation, are you covered if something happens to your volunteers while they’re engaged in service to your organization?

The concern is real. There were 287 fatal occupation injuries among volunteers from 2003-2007. Prudent nonprofits carry insurance, called “volunteer accident insurance,” to cover injuries to volunteers.

Workers Compensation

There are significant differences in how states address workers’ compensation coverage for volunteers. Workers’ compensation coverage can limit employer liability for injuries to an employee or, in some cases, a volunteer.

Under California law, a nonprofit can opt into workers’ compensation coverage with respect to their volunteers. But absent such an affirmative election, volunteers for nonprofit organizations generally are excluded from the definition of “employee” and therefore are not covered by the workers’ compensation and insurance laws (Labor Code § 3352(i)).

“[A] person who performs voluntary service without pay for a private, nonprofit organization, as designated and authorized by the board of directors of the organization, shall, when the board of directors of the organization, in its sole discretion, so declares in writing and prior to the injury, be deemed an employee of the organization for purposes of [workers’ compensation and insurance] while performing such service.” (Labor Code § 3363.6(a)). As a result, opting into workers’ compensation coverage effectively requires an affirmative resolution of the nonprofit’s board to have volunteers be deemed employees for purposes of workers’ compensation and insurance coverage.

For this purpose, “ ‘voluntary service without pay’ shall include the performance of services by a person who receives no remuneration other than meals, transportation, lodging, or reimbursement for incidental expenses.” (Labor Code 3363.6(c)). A volunteer who is an “employee,” by a written declaration of the board, would be entitled to full coverage as an employee.

Nonprofits that do opt in may wish to contact their workers’ compensation insurer to preempt coverage disputes that may arise after an illness or injury claim is made by a volunteer. Workers’ compensation insurance premiums are often based on gross payroll amounts. Because volunteers are not paid, a different allocation could be requested by the insurer to increase premiums accordingly.

Workplace Safety

Nonprofits should seek to prevent injury to their volunteers (and employees) by providing a safe workspace. At a minimum, while the federal Occupational Safety and Health Act’s (“OSHA”) and California’s similar statute do not appear to protect volunteers, OSHA has indicated that its coverage provides that any charitable or non-profit organization that employs one or more employees must comply with OSHA’s requirements and regulations. In any case, the proper supervision of volunteers should include the provision of a safe working environment.

Workplace Solution

The use of volunteers by nonprofits comes with legal risks, including those arising from injuries that volunteers incur. Those nonprofits fortunate enough to have people willing to serve without compensation are advised to consider carefully the possible legal implications before accepting services from such individuals. Nonprofits with volunteers must provide safe workspaces, consider procuring volunteer accident and volunteer liability policies, and consider formally opting into workers’ compensation insurance, if available.

Edited by John Giovannone and Chelsea Mesa