Steven L. Davis, Ph.D.

With local, state and federal agencies nationwide increasing the use of non-agency service providers, there needs to be clear guidelines for determining agency responsibility for the safety and compensation of these individuals should they be injured or otherwise incapacitated during the course of service to the agency.

Suppose a Volunteer Chaplain is called out to a hostage situation. When the suspect comes out of the building, shots are fired, and one of them strikes the Volunteer Chaplain, severing his or her spinal cord. Is the agency responsible to cover disability for Volunteer Chaplain, or does the word, “volunteer” absolve the agency from any liability? Or, how about if a “volunteer” (or otherwise non-salaried contract or non-contract employee) offers counsel to an employee and that employee later sues the agency? Is the agency liable?

The intention of having non-agency volunteer service providers is to help the employee to establish, maintain or regain a sense of equilibrium in order to better serve the agency. To provide support, counsel, including spiritual or religious counsel, to assist the employee in his or her service to the agency is totally appropriate for a local, state or federal agency.

The provision of counsel, the facilitating of religious observances for the purposes of helping the employees, even at the initiative of the agency, and making such observances known is not inappropriate. A government agency may appropriately recognize that its employees have cognitive, emotive and spiritual aspects to their lives. It is in this vein that the federal government recognizes the common law privilege in a penitent/clergy relationship. The details and extent of the law of privilege is determined by the state that the penitent/clergy relationship occurs in.

For example, a Chaplains Program is a resource provided by the agency to make available a pool of people who are familiar with the work and tensions faced by the employees, and who also have an adequate background check and security clearance that employees may talk freely without violating their responsibility of confidentiality.

Recognizing this environment, what is an agency’s responsibility to its employees for the content and competency level of the services provided by the non-agency service provider? What is the agency’s liability if, during agency service a Chaplain or other non-agency service provider is hurt, hurts someone or is sued? What is the agency’s responsibility if the volunteer service provider is hurt during course of service?

On a federal level, and for federal agencies, the Federal Tort Claims Act states that the federal government cannot be sued, except where it says it can. It is very clear under which situations and circumstances an individual may attempt to sue the federal government. Typically, if the incident occurs during “invitational travel,” the agency is responsible. If the agency requests a non-agency service provider to travel to an on site location, and the service provider is injured, incapacitated or killed, the agency is responsible. If, on the other hand, the non-agency service provider hears about an incident on his or her police scanner and elects to travel without the express consent or request of the agency, the agency may not be responsible for any injuries or other incapacitation incurred by the service provider. Lesson: The service provider is advised to always get permission, and get it in the form of, “Are you asking me to provide (counsel, support, etc.) to agency personnel at this location?” After an affirmative response, the service provider would be prudent to jot down the time as well as the name of the agency representative who gave the invitation to provide service.

If an employee is approached by a non-agency service provider and receives counsel, support or other services and later sues, the agency is not responsible. On the other hand, if, for example, EAP suggests that an employee receive counseling by a non-agency service provider, and that employee later sues, the agency is responsible. If the employee approaches to the service provider on his or her own initiative, the agency is not responsible.

Some agencies have policies of not being liable for volunteers and auxiliaries. The definition of “volunteer” and “auxiliary” varies from state to state. Factors to consider when determining the nature of a non-agency service provider’s relationship to the agency includes agency provided uniforms, jackets, badges, credentials and other equipment. Also, being on site under conditions or on locations that non-agency personnel are not allowed, would be grounds for proof of agency responsibility. Some agencies put the word “volunteer” in front of the title of the non-salaried service provide, in a effort to avoid liability. An individual’s credentials might state that he or she is a “Volunteer CISM Counselor,” “Volunteer Chaplain,” “Volunteer Massage Therapist.” Inserting the word “volunteer” is an attempt to avoid liability or responsibility, but the factors listed above hint that there may be other indicators to the nature of the service provider/agency relationship. Suppose that a non-agency service provider, authorized by agency supplied credentials, exempted from agency responsibility by the insertion of the word “volunteer” is shot in the course of duty, or permanently disabled. Will the word “volunteer” exempt the agency from all responsibility paying disability? Probably not.

Another category of non-agency service providers is the Contract Employee. This individual is non-salaried, but is “contract” because he or she has signed a contract, confidentiality and non-disclosure agreements. So, a chaplain or counselor would be a contract employee by virtue of the classified information non -disclosure agreement, which, for a chaplain with a federal agency would be an agreement between the individual and the United States. This has different connotations than the non-obligatory relationship of a volunteer service provider. The word “volunteer” attached to the contract non-salaried service provider’s title and agency credential has no bearing on the agency’s responsibility for this person’s actions and safety. The agency is responsible for the non-salaried contract employee just as it is for the salaried contract employee. (As a point of interest, the ‘Good Samaritan Act’ does not come into play with these individuals unless the situation is physically life threatening. The “Good Samaritan Act” does not apply to spiritual, emotional or psychological intervention.)

In summary, while these individuals are engaged in providing services for the agency, generally ‘performance of duty’ situations are covered. If routine presence is part of the individual’s job expectation, “routine presence” as well as what is meant by “routine presence” needs to be spelled out in the job description for that position. If the individual is injured during invitational duties, he or she stands a better chance of receiving compensation through the agency if he or she has documented the invitation (name of authorizing agent, time and date of invitation and the specific duties requested). In many agencies, there is no coverage without documentation of invitation for service. But there is also a three year window that claims for injury can be filed, along with documentation. At the same time, it is advised that whenever a non-agency service provider is injured in the line of duty, to notify his or superior and immediately get a medical evaluation.

Non-agency service providers should also be aware of the types of injuries and compensation available from their agency. A ’Traumatic Injury Claim’ is a one day or single incident that caused the incapacitation. This would be an injury sustained in an accident, a shooting, building collapse, nail through the foot - things like that. Then, there is “Occupation Illness,” which is from long term exposure, such as Anthrax. In general if a non-agency service provider is injured in service of the agency, at the agency’s request, the individual will probably be covered.