M E M O R A N D U M
TO: Honorable Mayor and City Council
FROM: David Kahn, City Attorney
Rebecca Moon, Assistant City Attorney
DATE: May 4, 2006
RE: Worker’s Compensation Coverage for Public Safety Worker Emergency Volunteers
QUESTION PRESENTED
Are DPS employees entitled to workers’ compensation benefits if they are injured while engaged in disaster assistance activities on their own time (e.g., not part of a mutual aid effort) outside the City of Sunnyvale?
EXECUTIVE SUMMARY
Under Labor Code §3600.2 and §3600.4, DPS employees would be entitled to workers’ compensation benefits if they are injured while providing emergency law enforcement services, fire suppression, or rescue operations, anywhere within the State of California. They would not be covered outside the State of California unless they were sent as part of an official mutual aid effort or were otherwise acting with the course and scope of employment.
DISCUSSION
California Labor Code §3600(a) requires employers to provide workers’ compensation coverage for “any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death”, where the conditions of compensation concur. Among other statutory conditions, the injury must occur while “the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment” (§3600(a)(2)), and the injury must be “proximately caused by the employment” (§3600(a)(3).)
Generally, “in the course of employment” refers to the time and place of injury, and the phrase “arise out of employment” refers to a causal connection between the employment and the injury. (Atascadero Unif. Sch. Dist. v. W.C.A.B. (2002) 98 Cal.App.4th 880, 883.)
First, public safety employees are entitled workers’ compensation benefits if they are assigned by the Department of Public Safety to another jurisdiction for purposes of providing mutual aid. Even if the employee has “volunteered” to be included in the mutual aid team, the activity is performed at the direction of the employer and arises out of the course and scope of employment. Also, the California Emergency Services Act specifically provides:
“. . . all pension, relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any political subdivision when performing their respective functions within the territorial limits of their respective political subdivisions, shall apply to them to the same degree and extent while engaged in the performance of any of their functions and duties extraterritorially under this chapter.” (Gov.Code §8656.)
Second, would a public safety employee be entitled to workers’ compensation coverage if he or she provides emergency assistance off-duty, outside any official mutual aid effort? Within the State of California, the answer is probably yes. The California Labor Code contains special provisions governing off-duty peace officers and firefighters who render emergency services. Labor Code §3600.2 provides:
“(a) Whenever any peace officer, as defined in Section 50920 of the Government Code, is injured, dies, or is disabled from performing his duties as a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace anywhere in this state, including the local jurisdiction in which he is employed, but is not at the time acting under the immediate direction of his employer, he or his dependents, as the case may be, shall be accorded by his employer all of the same benefits, including the benefits of this division, which he or they would have received had that peace officer been acting under the immediate direction of his employer. Any injury, disability, or death incurred under the circumstances described in this section shall be deemed to have arisen out of and been sustained in the course of employment for purposes of workers' compensation and all other benefits.”
Similarly, Labor Code §3600.4 provides:
“(a) Whenever any firefighter of a city, county, city and county, district, or other public or municipal corporation or political subdivision, or any firefighter employed by a private entity, is injured, dies, or is disabled from performing his or her duties as a firefighter by reason of his or her proceeding to or engaging in a fire suppression or rescue operation, or the protection or preservation of life or property, anywhere in this state, including the local jurisdiction in which he or she is employed, but is not at the time acting under the immediate direction of his or her employer, he or she or his or her dependents, as the case may be, shall be accorded by his or her employer all of the same benefits of this division which he or she or they would have received had that firefighter been acting under the immediate direction of his or her employer. Any injury, disability, or death incurred under the circumstances described in this section shall be deemed to have arisen out of and been sustained in the course of employment for purposes of workers' compensation and all other benefits.”
Both of the above provisions contain limitations which exclude coverage if the peace officer or firefighter is working for compensation from another entity at the time of his or her injury or death or if he or she is engaged in activities expressly prohibited by a city charter, ordinance, departmental regulation or policy. But the second limitation does not apply to firefighters who are rendering emergency services to insure the health or safety of a person in imminent peril. In other words, a city cannot avoid workers’ compensation liability by prohibiting firefighters from rendering aid to persons in “imminent peril.”
Note that Labor Code §3600.2 and §3600.4 only apply “in this state.” Therefore, a public safety officer who provides emergency assistance outside the State of California would not be entitled to workers’ compensation benefits under these provisions. However, local public entities do have authority to provide mutual aid during an out-of-state disaster, and employees who are part of that mutual aid effort would be covered.
CONCLUSION
In conclusion, Labor Code §3600.2 and §3600.4 provide that police officers and firefighters are covered by workers’ compensation while engaged in emergency activities within the State of California. They are not covered for voluntary emergency activities out of state unless sent by the Department of Public Safety as an employee to assist in an official mutual aid response.
The California Emergency Services Act outlines the duties and responsibilities of state and local agencies during disasters. It gives local public agencies broad authority to provide other jurisdictions with mutual aid, not simply during declared states of emergency, but also in any situation pursuant to local ordinances, resolutions, agreements or plans. (Gov. Code §8617.)