APPLICABILITY OF THE WASHINGTON INDUSTRIAL SAFETY AND HEALTH ACT (WISHA) TO VOLUNTEER FIREMEN

DISTRICTS ‑- FIRE PROTECTION ‑- EMPLOYEES ‑- APPLICABILITY OF THE WASHINGTON INDUSTRIAL SAFETY AND HEALTH ACT (WISHA) TO VOLUNTEER FIREMEN

The Washington industrial safety and health act (WISHA) is applicable to all volunteer firemen who are in any way monetarily compensated for their services as such ‑ including such compensation as is received by reason of their coverage as enrolled members of the volunteer firemen's relief and pension system.

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                                                                 August 29, 1975

Honorable George Sellar
State Senator, 12th District
1324 Terrace Drive
East Wenatchee, Washington 98801                                                                                                               Cite as:  AGLO 1975 No. 76

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Under what circumstances will so-called "volunteer" firemen who serve as members of the fire department of a fire protection district under Title 52 RCW be deemed to be "employees" for the purposes of the Washington Industrial Safety and Health Act (WISHA)?

            We respond to this question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The Washington Industrial Safety and Health Act, now codified as chapter 49.17 RCW, was enacted by the legislature as chapter 80, Laws of 1973.  The stated purpose of this legislation, as set forth in § 1 thereof (RCW 49.17.010) is as follows:

            "The legislature finds that personal injuries and illnesses arising out of conditions of employment impose a substantial burden upon employers and employees in terms of lost production, wage loss, medical expenses, and payment of benefits under the industrial insurance act.  Therefore, in the public interest for the welfare of the people of the state of Washington and in order to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington, the legislature in the exercise of its police power, and in keeping with the mandates of Article II, section 35 of the state Constitution, declares its purpose by the provisions of this chapter to create, maintain, continue, and enhance the industrial safety and health program  [[Orig. Op. Page 2]] of the state, which program shall equal or exceed the standards prescribed by the Occupational Safety and Health Act of 1970 (Public Law 91-596, 84 Stat. 1590)."

            Full power to administer the act, and to adopt rules and regulations to achieve its underlying purposes, is vested in the state department of labor and industries.  It would, however, unduly lengthen this opinion to detail, here, all of the various regulatory provisions of the law.  Suffice it to say, for present purposes, that the act imposes, or provides for the imposition by regulation of various obligations upon "employers" for the benefit or safety of their "employees".

            The term "employer" is defined by RCW 49.17.020(3) to mean:

            ". . . any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons and includes the state, counties, cities,and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations:  Provided, That any person, partnership, or business entity not having employees, and who is covered by the industrial insurance act shall be considered both an employer and an employee."  (Emphasis supplied.)

            Subsection (4) of this same statute then defines the term "employee" to mean:

            ". . . an employee of an employer who is employed in the business of his employer whether by way of manual labor or otherwise and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is his personal labor for an employer under this chapter whether by way of manual labor or otherwise."

            From the first of these two definitions there can be no doubt but that a fire protection district established  [[Orig. Op. Page 3]] under Title 52 RCW, to the extent that it employs persons for the performance of personal labor of any kind, is an "employer".  Such a district is clearly either a "municipal corporation" or a "political subdivision" ‑ or perhaps, both.  Accord, the reasoning of our state supreme court in Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972) which involved the applicability of another recent law containing similar definitions, the public employees' collective bargaining act of 1967 (chapter 41.56 RCW), to irrigation districts and their employees.

            From this it readily follows that any person employed by a fire protection district in connection with the business of such a district (in this case, fire fighting and like services in connection with the provision of fire protection to the inhabitants of rural areas in our state)1/ is an "employee" as above defined in RCW 49.17.020(4); i.e., again (insofar as is here pertinent):

            ". . . an employee of an employer who is employed in the business of his employer whether by way of manual labor or otherwise . . ."

            From this statutory definition it is to be seen that the legislature has, in essence, used the term "employee" in its ordinary sense ‑ the only qualification being that in order to be an "employee" and individual must be employed by an employer, as defined in RCW 49.17.020(3), in the business of that employer.  In ordinary usage, the word "employee" denotes one who (a) renders services for, and under the supervision of, another (b) for a specified salary, wages, or other (usually) monetary consideration.  See, e.g., Webster's Third International Dictionary, p. 743; and Random House Dictionary of the English Language, p. 468.  Accord, such cases as Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798 (1937), in which the word "employee" was said to import ". . . some sort of continuous service rendered for wages or salary and subject to the direction  [[Orig. Op. Page 4]] of the employer or master as to how the work shall be done."

            The basic authority of fire protection districts to "employ" persons to perform the functions of those districts will be found in RCW 52.08.020, which reads as follows:

            "Such fire protection districts shall have full authority to carry out the objects of their creation and to that end are authorized to acquire, purchase, hold, lease, manage, occupy and sell real and personal property, or any interest therein, to enter into and to perform any and all necessary contracts,to appoint and employ the necessary officers, agents and employees, to sue and be sued, to exercise the right of eminent domain, to levy and enforce the collection of taxes and special taxes in the manner and subject to the limitations herein provided against the lands within the district, for district revenues, and to do any and all lawful acts required and expedient to carry out the purpose of this act."  (Emphasis supplied.)

            Often, however, the membership of the fire department of a fire protection district is actually composed of only a small number (perhaps one or two) of full time, regularly compensated employees ‑ together with what is ordinarily a somewhat larger group of so-called "volunteer firemen."  The latter, in most cases, receive no fixed monthly or other periodic salary, as such, but do receive some form of monetary payment for their services ‑ usually in the form of a specified amount per fire call or drill period in which an individual volunteer fireman participates.  In addition, all volunteer firemen are mandatorily covered by the disability provisions of the volunteer firemen's relief and pension system as provided for in chapter 41.24 RCW.  See, RCW 41.24.020.