Legal Q&A: How State Law Regulates Volunteer and On-Call Firefighters and Other Emergency Staff
This article discusses some of the statutes applicable to volunteer and on-call firefighters and emergency medical service personnel. Such persons perform the majority of this important first responder work in our municipalities, and the law has given them special protections to encourage their contributions to our collective public safety.
Q: I would like to be a firefighter in my municipality. What are the requirements?
A: The New Hampshire Department of Safety, Division of Fire Standards and Training and Emergency Medical Services notes on its website:
NH firefighters are broken into three major categories: volunteer, paid-on-call, and permanent. Volunteer departments manage their firefighters without compensation and those firefighters view their role as a civic service in their community. Call fire departments do not have regular staffed shifts but compensate firefighters on a per call basis; or they may include a monthly stipend. About 80% of fire departments in NH operate as call or volunteer departments. State law does not require training for these departments. However, most departments have training requirements as part of their standard operating guidelines.
Permanent firefighters are those whose careers are firefighting. Only about 20% of New Hampshire fire departments are covered by permanent firefighters. There are State requirements to be eligible to be a permanent firefighter which include a high school diploma or GED; a minimum age of 18; a successful background check with no felony convictions; and successful completion of a written general knowledge exam, a physical ability exam, a pre-employment physical examination and an oral interview. A new firefighter must attain Firefighter II status by successfully completing a training course at the New Hampshire Fire Academy within 12 months of employment.
Q: I want to do this on a part-time volunteer basis, in that I don't expect to be earning an hourly wage for the time I spend with the department. Is there a clear line between being a "volunteer" and an "on-call' firefighter?
A: Yes. As defined in RSA 508:17, V(c), "volunteer'' means an individual performing services for a nonprofit organization or government entity who does not receive compensation, other than reimbursement for expenses actually incurred for such services. Thus, if the department pays a member any compensation beyond amounts required to reimburse for actual out-of-pocket expenses, the status of the member changes from that of "volunteer" to "paid-on-call." For this purpose, it does not matter whether the compensation is based upon a "per call attended" basis, or is called a "stipend,'' or how often during the year the compensation is paid to the member.
Q: Is the rule the same if I volunteer only to work on the local ambulance, and not to respond to fires?
A: Yes, the rule is the same with regard to compensation. There are different laws, found in RSA 153-A, that control the provision of "emergency medical services" at the scene of an incident. These laws require persons providing these services to be licensed. While many firefighters also take the necessary training and become licensed to provide emergency medical services, this is not always the case. There are also instances where licensed emergency medical service providers do not seek to serve as firefighters.
Q: If I work with the local department as a volunteer or on-call member, do I receive any special protections against personal liability for my actions?
A: Yes. RSA 508:12-b states:
508:12-b Liability Limited; Fire Department, Emergency Service, and Rescue Squad Members.
I. No person who is a volunteer, "part paid'' or "call'' member of a nonprofit fire department, emergency service or rescue squad operating in any political subdivision shall be held personally liable in any action to recover for personal injury or property damage arising out of any act performed or occurring in the furtherance of his official duties. Nothing in this section shall affect the liability of the political subdivision, department, service or squad served by such person. Nothing in this section shall affect the liability of such person for damages arising out of willful misconduct, gross negligence, or operation under the influence of drugs or alcohol.
II. In this section: (a) "Call'' member means any member other than a full-time paid employee who receives payment for each emergency response. (b) "Official duties'' mean emergency duties only. © "Part paid'' member means any member other than a full-time paid employee who receives an annual retainer or stipend of less than $5,000 for his services as a member.
While this gives substantial individual protection, note the limitations. It only protects while in the performance of "emergency duties." If the person is paid more than $5,000 per year for his or her services, the statute no longer applies to that person.
There is another important statutory protection, found in RSA 154:1-d, II, which states:
II. Any firefighter, paid or volunteer, who is acting in an official capacity under the direction or supervision of the elected or appointed fire chief, or designee, of a municipal fire department organized in accordance with RSA 154:1, or who is participating in a fire department activity sanctioned by the local governing body or its designee, shall be an agent of the municipality, enjoying the same privileges and immunities as the municipality or employees of the municipality. Such privileges and immunities include, but are not limited to, indemnification for civil rights damages to the extent set forth in RSA 31:106, and indemnification for any other accidental damages to the extent set forth in RSA 31:105, if the municipality has adopted that section.
This section enlarges the protection from emergency response duties to any "activity sanctioned by the local governing body or its designee." … Thus, sanctioned training activities are covered. It also expands the protection from immunity for personal liability to indemnification for additional damages. This means that if the member is sued for an activity, the municipality will pay for the cost of defending the suit if RSA 31:105 has been adopted by the governing body. This can be a substantial amount of money and is a valuable protection to the member.
Q: Are there other benefits or protections provided for volunteer or on call service on the fire department?
A: Pursuant to RSA 154:16, firefighters may be paid in amounts determined reasonable by their local governing and legislative bodies. Paid and volunteer members of the fire department and the ambulance service receive coverage for any injuries incurred while in service under the worker's compensation law, since they are defined as public employees under RSA 281-A:2, VII(a). If a firefighter is disabled or killed while in service, RSA 154:31 and :32 authorize municipalities to appropriate sums to provide for the disability costs or burial costs. Many municipalities purchase life and disability insurance policies to deal with this risk.
Q: Are there special concerns if I use my own vehicle to respond to emergency calls?
A: Yes. Going back to RSA 508:17, section IV states:
IV. Volunteer activity related to transportation or to care of the organization's premises shall be excepted from the provisions of paragraph I of this section.
This means that there is no immunity, and no protection against personal liability, if a crash occurs when volunteers are using their own vehicles for the volunteer activity. A volunteer may wish to contact his or her insurance provider to determine what coverage issues may arise from using the vehicle to respond to an emergency scene. From the standpoint of the municipality, the department should carefully examine any policies it has regarding the use of personal vehicles in emergency response and the risks they pose to the volunteer or on-call member, the department and the public.
Q: What types of risks are involved?
A: Has the department examined the driving record of the member to determine if there are problems or convictions? Does the member have adequate insurance coverage to protect against a crash that occurs while on official department business? Does the member have the correct class of diving license to operate the apparatus of the department? This may involve the complex area of commercial driver licensing and related issues of medical compliance and mandatory drug and alcohol random testing.
Is the personal vehicle properly equipped for an emergency response? For example, here is the statute regarding installation of red light systems on vehicles:
266:78-c Red Lights Restricted to Police, Fire, and Rescue Vehicles. - No person other than those authorized in this section shall operate a vehicle equipped with red colored emergency lights. Red lights are authorized for the following vehicles:
I. Emergency response vehicles owned or leased by municipal, village district, or federal fire departments and forestry departments.
II. Vehicles privately owned or leased by full-time or volunteer firefighters employed by municipal, village district, or federal fire departments and forestry departments or forest fire wardens and deputy wardens when authorized by their department heads.
III. Licensed public or private ambulances and emergency medical response and rescue vehicles, and members of licensed ambulance and emergency medical response and rescue crews when authorized by their employers.
Note that the red lights should not even be installed on a private vehicle unless installation and use has been authorized in advance by the appropriate command staff of the department. The lack of authorization will cause the vehicle to fail inspection under RSA 266:78-o, II. A letter of authority on official stationery from the department must be carried in the vehicle and displayed to a law enforcement officer on request.
If the member has such visual or audible warning signals, has the member been adequately trained in the law and practical difficulties relating to driving such a vehicle? The statute is RSA 265:8. While it relaxes the duty to comply with speed and other regulatory provisions during the response, there is this important limitation in section V. "The provisions of RSA 265:8, II and III shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."
Local officials in NHMA-member municipalities may contact NHMA Legal Services attorneys for more information on this and other topics of interest, Mondays through Fridays, from 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 3408. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.