The Volunteer Protection Act of 1997 (VPA) is a federal law designed to promote volunteerism by protecting volunteers from liability if an injury occurs while they are volunteering. Many organizations relying on the services of volunteers assume that the protections afforded by the VPA extend to the organization itself. Unfortunately, this assumption is incorrect, and the consequences of this misunderstanding can be severe.
The extent to which many organizations are dependent upon the services of volunteers to sustain or complete their objectives is reflected in a survey conducted by the U.S. Bureau of Labor Statistics, which reported that approximately 62.8 million people volunteered their time in 2010. Given the scope of volunteerism, it is critical to have an accurate understanding of what the VPA does, and perhaps more importantly, does not do.
The VPA, which is designed to “promote the interests of social service…by reforming the laws to provide certain protections from liability abuses related to volunteers,” only protects those individuals who volunteer for a governmental entity or a nonprofit organization, such as a tax exempt organization described in Section 501(c)(3) of the Internal Revenue Code, or a not-for-profit organization organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes.
Those who volunteer for a governmental entity or a nonprofit organization are generally protected by the VPA if:
- the volunteer was, if required or appropriate, properly licensed, certified, or authorized by the appropriate State authorities to perform volunteer’s activities; and
- the harm was caused by the volunteer’s simple negligence, rather than by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the person harmed.
However, even if the foregoing conditions are met, a volunteer for a governmental entity or a nonprofit organization will not be protected by the VPA if:
- the harm was caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the volunteer is required to have an operator’s license or maintain insurance;
- the volunteer’s misconduct constitutes a violent or hate crime, or involves a sexual offense or civil rights violation for which the volunteer was convicted; or
- the volunteer was under the influence of intoxicating alcohol or any drug at the time of the misconduct.
While the VPA may help an organization recruit and retain volunteers, it does not protect the organization itself. In fact, the VPA provides for precisely the opposite: “Nothing in [the VPA] shall be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person.” Despite this clear language, confusion remains regarding the extent to which organizations are protected by the VPA.
One possible explanation for the confusion may be that states have enacted their own laws addressing volunteer liability. While volunteer liability laws may vary among states, sometimes significantly, they generally focus on protecting the volunteers, not the organizations.
For example, Florida’s Volunteer Protection Act, which applies to “any person who volunteers to perform any service for any nonprofit organization,” provides that if a volunteer is shielded from liability under the statute, then the nonprofit organization shall be liable for any damages. Although considerably different than Florida’s statute, Mississippi’s statute protects a “qualified volunteer,” rather than a “volunteer agency,” from liability for any personal injury or property damage.
Given this lack of protection, volunteer organizations must recognize that they face nearly identical risks as their for-profit counterparts. Simply because an organization utilizes the services of volunteers for civic or charitable purposes does not mean that the organization, or its volunteers, cannot cause injury or harm to another. Volunteer organizations do many of the same things businesses do, such as own or lease premises, perform services, drive cars, and otherwise interact with the public.
Since the activities are similar, so too are the risks. Accordingly, volunteer organizations must approach risk management in the same way as any other business: implement a risk management program designed to identify and control exposures to loss; and maintain adequate insurance coverage that will protect against such exposures, including any exposures unique to a particular type of activity.
The Volunteer Protection Act, along with similar state laws, are designed to encourage people to volunteer their time and effort to the cause of their choosing. This goal is accomplished by protecting the volunteers, not the organization. The reality is that despite their benevolent purpose, volunteer organizations are not immune to the risks and liabilities endured by virtually every other business organization. Unfortunately, the consequences of failing to minimize the risks and control the liabilities could be far greater: people often rely on charitable organizations for much more than just goods and services.
If you would like to learn more about the controlling the risks facing your nonprofit organization, please contact us.