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MIOSHA's Coverage of Volunteer
Work
Editor's Note: MIOSHA considers
everyone permitted to work for you to be your employee. (See
question #3 in the MIOSHA
FAQs file below.)
The Michigan Occupational
Safety and Health Administration (MIOSHA) enforces workplace
safety and health regulations under authority of the Michigan
Occupational Safety and Health (MIOSH) Act, Act 154 of 1974,
as amended.
The MIOSH Act states in Section
11(a) that it is the employer’s responsibility to: “Furnish
to each employee, employment and a place of employment which
is free from recognized hazards that are causing, or are likely
to cause, death or serious physical harm to the employee.”
The MIOSH Act clearly places responsibility for a safe and healthy
workplace on the employer.
Who is the “Employer”
When Volunteers are Doing the Work?
During the investigation
of any worksite or work operation, the MIOSHA inspector must
establish an employer/employee relationship before MIOSHA rules
and standards can be applied. While the investigation is ongoing
we review contracts and written documents, and conduct interviews
to determine what the working relationships are at the worksite.
A number of issues are considered
to determine if an employer/employee relationship exists including,
but not limited to; the important issues of who provides direction
to individuals at the worksite with regard to work activity,
and who provides wages to individuals at the worksite for work
performed.
Before MIOSHA rules and standards
apply, an employer/employee relationship must be established.
It is not unusual for volunteer
organizations to conduct work that exposes individuals to hazards.
A couple examples of such activities are the American Red Cross
conducting a blood drive and Habitat for Humanity building a
house.
MIOSHA has created an “analysis”
procedure to determine whether there is an employer/employee
relationship when individuals are performing work as volunteers.
The main factor to consider is whether the work is “controlled”
by a directing entity.
Who Controls the
Work?
MIOSHA determines if an employer/employee
relationship exists by asking the following questions.
1. Does the employer control
the work?
MIOSHA must determine if
the individual performing the work schedules at their convenience,
or is the person told when to report and how to perform the work,
is there a designated position that provides direction/oversight,
is the equipment and material needed for the work provided for
the volunteer, etc.?
Based on the answers to these
questions, MIOSHA will make a determination as to whether or
whether not the work is controlled. If the work is not controlled,
there is no employer/employee relationship and the volunteer
work is not covered by MIOSHA jurisdiction. The analysis need
go no further.
2. When it is determined
the work is controlled?
MIOSHA will determine whether
the volunteer receives any type of compensation, or whether a
product is produced or revenue is generated as a result of the
volunteer work. If the response is “no,” there is no
employer/employee relationship and the volunteer work is not
covered by MIOSHA jurisdiction. The analysis need go no further.
3. When there is compensation,
a product produced, or revenue generated.
MIOSHA will determine the
level of compensation, product produced or revenue generated.
If the level of compensation is De Minimis (i.e., a lunch or
t-shirt, local fundraiser, etc.), there is no employer/employee
relationship and the volunteer work is not covered by MIOSHA
jurisdiction. The analysis need go no further.
4. When compensation, product
produced, or revenue generated is more than De Minimis.
This indicates that for MIOSHA
purposes, an employer/employee relationship does exist, and the
volunteer work performed is covered by MIOSHA safety and health
standards.
Can MIOSHA Help
Protect Volunteer Workers?
Volunteers can be exposed
to hazards that are just as serious as employees who are working
for a paycheck. In the past three years, MIOSHA has identified
two fatalities related to volunteer work.
In one case, a volunteer
was killed when an improperly supported scaffold fell on top
of him, and in the other a volunteer was electrocuted while making
an electrical service tie-in. Proper lockout procedures and/or
protective equipment were not used in this case. Implementing
MIOSHA rule requirements could have prevented both of these tragedies.
Reprinted from the Spring 2007 MIOSHA
News.
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