An often-asked question by private fire service organizations is whether Title I of the Americans with Disabilities Act (ADA) includes volunteer firefighters and other volunteers within an organization. Section 12,112(4) of the ADA and the Equal Employment Opportunity Commission (EEOC) ADA regulations (29 CFR 1630.2(f)) states that the term or definition of “employee” means an individual employed by an employer. This raises the significant question as to whether volunteer firefighters and other volunteers within the organization are “employees” under the definition of the ADA and thus should be afforded protection. At this point in time, there has been no decision by the courts to settle this issue.

A prudent fire service organization may want to take the conservative position and consider its volunteer firefighters and other volunteers as being protected by Title 1 of the ADA until the courts decide this question. However, a fire service organization reasonably could take the position that unpaid (volunteer) firefighters and other uncompensated volunteers are not employees and thus should not be afforded protection under Title I.

In analyzing this question, private fire service organizations should be aware that the EEOC interpretive guidelines expressly state that the term employee “has the same meaning as it is given under Title VII (Civil Rights Act of 1964).” Under Title VII, the courts have only addressed the issue of volunteers on two occasions—-and both cases dealt with whether volunteers should be counted as employees for compliance purposes with Title VII, not whether a volunteer was an “employee.”

In Smith v. Berks Community Television 1657 F. Supp. 794 (E.I). Pa. 1987)|, the company employed nine paid employees and 1 1 unpaid (volunteers). The court addressed the policy considerations that Title VII was intended to protect against illegal discrimination in compensation, terms, conditions, and privileges of employment but found that “reading the term ‘employee’ in light of the mischief to be corrected and the end to be attained … unpaid volunteers are not employees within the meaning of the Act.”

In Hall v. Delaware Council of Crime & Justice |780 F. Supp. 241 (D.Del. 1992)|, the employer would have fewer than 15 employees if volunteers were not counted and thus would not be required to comply with the provisions of Title VII. As in Smith, the court found that despite the volunteers being provided certain fringe benefits (i.e., lunch) and other benefits, these benefits were not sufficient “to consider these volunteers employees for the purposes of Title VII.”

Additional support for concluding that volunteers are not “employees” under the ADA includes the Department of Education’s Office of Civil Rights determination under Section 504 of the Rehabilitation Act, the lack of legislative history by Congress in addressing this particular question, and the lack of a determination on this question by the EEOC in its interpretive guidelines.

However, fire service organizations should be aware that there is strong support for the contrary position that volunteers are “employees” for the purposes of the ADA. First, there is a strong public policy argument that excluding volunteers from protection would undermine the intended purposes of the ADA. Second, support can be found for this position in Congress’ use of the term “qualified individual” rather than “employee” for protection purposes under the ADA. Third, in many states, volunteer firefighters and other volunteers already have been provided “employee” status for the purposes of workers’ compensation and other benefits and privileges And fourth, many companies and organizations are required to include volunteers in their total employee calculations requirements for other regulatory and insurance purposes.

Until such time as the courts determine the answer to this question, prudent private fire service organizations required to comply with the provisions of Title 1 of the ADA may want to assess their position regarding volunteer firefighters and other volunteers within their organizations and determine the best course of action for their circumstances. In many organizations, achieving compliance w ith Title I can be attained with minimal effort and cost, and compliance already may be required and initiated for other paid “employees.” Inclusion of volunteer firefighters within the “employee” compliance program is the prudent path to follow until this question is addressed and answered.

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