Wednesday, August 25, 2021
In a new, practical, article – falling into the category of risk management counseling – the authors identify and explain the federal statutory and regulatory authorities which govern hospital planning for emergency conditions, with a focus on the thorny issue of how such institutions are to address injury or death sustained by volunteer workers. Workers’ compensation and tort immunity are themes throughout. See John I. Winn, Seth Chatfield & Kevin H. McGovern, Medical Volunteers During Pandemics, Disasters, and Other Emergencies: Management Best Practices, 11 Seattle Journal of Technology, Environmental & Innovation Law 282 (2021), https://digitalcommons.law.seattleu.edu/sjteil/vol11/iss2/2/.
The authors devote a special part of the article to workers’ compensation coverage considerations. The authors – no surprise – identify a variety of state laws on workers’ compensation and volunteers that injects uncertainty into the coverage analysis. In this regard, some states can be identified as providing coverage for volunteers, while others cannot be so identified.
Meanwhile, a hospital’s attempt to require a “volunteer liability release” is fraught with similar uncertainty: “Consideration [of] the use of volunteer liability releases would require a detailed analysis of the host state’s statutory and case law.”
The authors review the National Incident Management System (NIMS), a project of FEMA, which, among other things, generally establishes that, in an emergency where workers are dispatched from a foreign state into the area of the emergency, the “sending state’s workers’ compensation provisions as well as tort liability statutes generally cover deployed personnel.” These and related plans have a shortcoming, however, in the lack of provisions for utilization of private sector volunteers.
The authors do identify a law, the Uniform Emergency Volunteer Health Practitioners Act, drafted “to address the complexity of workers’ compensation for cross-border volunteer healthcare practitioners,” but only eighteen states and D.C. have adopted its provisions.
The authors strongly advocate that hospitals maintain emergency plans that address comprehensively the issue of volunteers. “Preparation for worst-case scenarios,” they admonish, “involves consideration of all reasonable measures to mitigate the risk that responding volunteers may harm others … or injure themselves….”
The article concludes with a list of 18 volunteer-intensive hard recommendations/best practices for hospitals to consider in preparing or amending their emergency plans. One of these is inclusion in the hospital’s Emergency Volunteer Handbook of an explanation of “whether (or which) volunteers will be covered by workers’ compensation or commercial insurance.”