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 Employment Standards Act (ESA) and 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 Workers Compensation Act (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 or gift certificates) are sufficient for an individual to be considered a “worker”. However, in 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.
Employers must be cautious when using volunteers and should determine whether or not such individuals would be considered “employees” under the ESA, or “workers” under the WCA. Additionally, it is important to note that although similar considerations apply, an individual may be considered a “worker” under the WCA and not an “employee” under the ESA, or vice versa. These determinations are significant to employers and can have a significant impact on their potential obligations and liabilities. Employers are encouraged to seek legal advice prior to making important decisions in this area.
Click here to find out how the Employment Standards Act interprets volunteerism.
