cert_liability_guide_508_111615
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Acknowledgements
FEMA wishes to gratefully acknowledge the support and assistance of the CERT
programs which provided information, support and sample documents for
inclusion in this Guide.
Butler County Kansas CERT
Fresno California CERT
Los Angeles California CERT
Matanuska-Susitna Borough Alaska CERT
Nassau County New York CERT
Pendleton County West Virginia CERT
Santa Rosa County Florida Emergency Management Agency CERT
Stearns and Benton County Minnesota CERT
Disclaimer of Liability
This Guide is offered for general informational purposes only, and without
warranty of any kind. It does not provide legal or other professional advice. It
does not address specialized liability issues, such as credentialing and privileging
of health care workers and privacy laws. Every effort has been made to provide
useful and accurate information, but descriptions of the law have necessarily
been generalized and may not reflect the law in a particular state. The user is
encouraged to consult with a legal advisor, a human resources professional, or a
risk manager, as appropriate, for more in-depth information about specific issues.
Users who coordinate or manage a local CERT program sponsored by a
government agency are encouraged to consult the agency’s legal advisor.
Finally, keep in mind that following the recommendations in this Guide is no
guarantee against being sued.
PAGE i
[This page intentionally left blank]
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Contents
Introduction ______________________________________________________ 1
1. Overview ____________________________________________________ 1
2. The Benefits of Risk Management ________________________________ 3
3. The Five Steps to Managing Risk _________________________________ 4
Step One – Get Leadership Support ______________________________________ 5
Step Two – Gather Information __________________________________________ 6
Step Three – Identify and Analyze Risk ____________________________________ 8
Step Four – Adopt Strategies to Manage Risk ______________________________ 10
Step Five – Maintain the Momentum _____________________________________ 32
4. Conclusion _________________________________________________ 33
Appendices _____________________________________________________ A-i
Glossary __________________________________________________________ A-1
Resources: Sample Documents ________________________________________ A-3
Resources: Links to Other Resources ___________________________________ A-5
Finding Statutes and Bills Online _______________________________________ A-7
PAGE iii
[This page intentionally left blank]
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Introduction
When disasters occur, professional first responders are not the first on the scene.
If access is obstructed or the agency’s capacity is exceeded, it may be hours —
or days — before professional help arrives. In this environment, non-professional
members of the public spontaneously reach out to help those affected. Without
information and training, however, spontaneous assistance can sometimes fail to
meet its objectives. Community Emergency Response Team (CERT) programs
support and direct post-disaster public energy to ensure that non-professional
response is as safe and effective as possible. CERT program activities can
create risk and adverse consequences; however, perceptions about liability may
be a larger barrier for CERT formation, activities and partnerships than is justified
by reality. There is no indication that CERT programs have any unusual liability
experience. Still, perceptions can pose as great a barrier as reality. The purpose
of this Guide is to offer information and suggested techniques to help CERT
programs overcome this barrier. Those who will benefit from this information
include local CERT programs, their sponsoring government agencies and legal
advisors, and CERT members themselves.
1. Overview
The foundation of the CERT Program is FEMA’s CERT Basic Training Course,
which provides a baseline of knowledge for all CERT members. This national
training curriculum educates the public about emergency preparedness and
teaches basic emergency response skills. Completing the course prepares the
public to safely assist family, friends, neighbors, co-workers or fellow students
before professional first
responders arrive, whether or
not the trainee joins a CERT
team. Those who join a CERT
team may also participate in
organized activities (community
service opportunities) that are
not part of an emergency
response, such as distributing
preparedness materials. In an
emergency, CERT members
may be called upon to assist
professional responders with
operational activities under the
command and control of an
affiliated or sponsoring local
government agency. To prepare
for participation in operational
activities, members complete training about the Incident Command System.
Many CERT programs go beyond the baseline training and offer their members
supplemental training to develop additional skills.
Examples of Supplemental CERT Training
•Animal response and care
•Advanced first aid
•Automatic external defibrillator
•CPR
•Community relations
•Debris removal
•Donation management
•Emergency communications
•Team leadership
•Shelter management
•Special needs concerns
•Traffic and crowd management
PAGE 1
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Local CERT programs around the country have much in common, but they also
have significant differences. CERTs are grassroots community groups with
specific goals and levels of expertise determined by their sponsoring
organizations to fit community needs and resources. Thus, CERT programs differ
in their mix of educational, operational, and community service activities. Local
CERT programs are usually sponsored by local government—typically fire or
police departments or emergency management agencies—or other organizations
in the community such as large businesses or universities. With inherent
differences in community hazards and available resources, there is no single
CERT program profile.
Although CERT programs differ in some ways, they share the potential to offer
substantial benefits to their sponsoring organizations, their communities, and
their members. As with any activity, however, there is risk. Although not common
in CERT program activities, bodily injuries, illnesses, property damage, and other
harmful events can result in adverse consequences for the sponsoring agency or
organization, the CERT, or the CERT members, trainers, leaders, and affiliates.
Some of these consequences are direct: lawsuits, settlements, payment of
benefits to injured CERT members, attorney’s fees, court costs, and civil and
criminal penalties under state law. Others are indirect, including the following:
disruption of relationships, damage to reputation, and increased insurance costs.
In this Guide, we refer to risk and its adverse consequences for brevity purposes
as “liability.”
Unfortunately, there is no simple, complete, and uniform remedy to address
liability. Various state laws provide some relief, but many laws have detailed
requirements and exclusions. Liability protections differ significantly from state to
state, and even within different jurisdictions within a state. Although CERT’s
operational activities pose greater risk than non-operational activities, operational
activities often receive greater liability protection and access to injury benefits.
Insurance can be just as unpredictable. CERT members may be covered by their
local government or sponsoring agency’s liability and workers’ compensation
insurance in some activities, but not in others. Or they may not be covered at all.
Consequently, neither the law nor insurance provides absolute protection to
CERT programs and their members.
These complexities leave many advocating a federal liability solution, but there
are factors working against that approach. Congress is reluctant, for
constitutional reasons, to pass laws that override state liability laws. Even the
Federal Volunteer Protection Act of 1997 (VPA) provides only limited protection,
which leaves much control in the hands of the states. Thus, for the present,
liability protection for most CERT members is likely to remain primarily at the
state level.
PAGE 2
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Discussions about liability often focus on
insurance and liability protection afforded under
the law. The law and insurance are both
important, but they are only part of the solution.
CERT programs can best address liability
protection by adopting risk management
procedures that include, but are not limited to,
using the protection provided by the law and by
available insurance. This Guide suggests a five-
step risk management process. The practices discussed will be familiar to many
users because they are effective management practices, many of them already
used by CERT programs. Highlighting good management practices within this
document will provide a collection of sample resources and demonstrate the
value of risk management procedures and their relationship to liability.
The CERT Liability Guide is offered for general informational purposes only. It
does not provide legal advice, and the user is encouraged to seek out state-
specific legal advice from a qualified attorney before taking any action. Keep in
mind that, with a few limitations, anyone can file a lawsuit against anyone else.
Nothing, including following the recommendations in this Guide, is a guarantee
against being sued.
2. The Benefits of Risk Management
Meeting a CERT program’s goals requires access to resources: volunteers,
equipment, premises, funding, and relationships. Liability, and the perception of
liability, diminish these resources and impact the program’s ability to achieve its
goals. A CERT program that manages risk preserves the resources it needs to
achieve its goals. Benefits of risk management include the following:
Confidence in the program.
CERT programs must be affiliated with or sponsored by a local government
agency, and engage in operational activities only under the command and control
of that agency. Thus, CERT programs do not operate without the confidence of
professional emergency response agencies, and those agencies are more likely
to have confidence in a CERT program that takes steps to manage risk.
A positive public image.
CERT programs that successfully manage risk have a more positive public
image, which enhances their ability to build relationships with other
organizations, and obtain resources and funding. A reputation for safety in a
CERT program’s own operations also enhances the credibility of its emergency
preparedness outreach efforts.
Risk management: A process
of risk identification and
analysis, risk control and
mitigation, and risk financing
that seeks to reduce the
negative consequences of risk.
PAGE 3
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Reduced expenses.
Successful risk management helps avoid costs that include:
• Defense costs (the costs of attorneys and court fees)
• Claims administration costs (the costs of managing claims, including
claims administrator fees and the lost productivity of workers involved in
claims administration)
• Settlements (agreed sums paid to claimants to resolve claims or litigation)
• Judgments and awards (sums paid under an order of a court or
administrative agency)
• Medical and income replacement benefits (sums paid to injured workers
who are covered by workers’ compensation or a similar program)
• Fines and penalties (sums required to be paid as a penalty for a legal
offense)
Reduced insurance costs.
If the CERT program is covered by insurance, the premiums charged may be
based in part on loss history. In those cases, reduction of insured losses is likely
to result in lower premiums, preserving financial resources for other purposes.
Preservation of the CERT program’s investment in members.
CERT programs make a substantial investment in their teams and members. If
the CERT loses a member due to an injury or illness, it loses the value of its
investment in that member, including training and screening. Ripple effects may
include losing other members that become concerned about the safety of
participating in CERT activities.
Increased participation in CERT
Some potential CERT members may be concerned about personal liability or
about being injured or contracting an illness during CERT activities, and they
may decline to participate if not protected. Providing liability protection and injury
benefits limits this barrier and conveys the message that CERT members are a
valuable part of the sponsor’s team.
3. The Five Steps to Managing Risk
This section describes a five-step approach to managing risk in a CERT
program. The steps are:
• Step One – Get Leadership Support
• Step Two – Gather Information
• Step Three – Identify and Assess Risk
• Step Four – Adopt Strategies to Manage Risk
• Step Five – Maintain the Momentum
PAGE 4
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
This approach can be used by any CERT program, whether established or just
beginning. Throughout this process, think about the program’s mix of activities.
Some activities are riskier and more likely to result in liability, but that does not
mean that they should be avoided if they are otherwise useful. Effective risk
management strategies can reduce the likelihood of liability and raise everyone’s
comfort level.
The CERT National Program Office has published a recommended process for
starting a CERT program at http://www.fema.gov/start-and-maintain-
community-emergency-response-team-program. The process includes many
recommendations that incorporate key components of risk management. Review
those recommendations to see how they complement the risk management
process described in this Guide.
Here is a description of the five steps to managing risk:
Step One – Get Leadership Support
The support of local leaders is critical when establishing a CERT program and is
just as important for managing risk. An effort that has the support of upper
management is more likely to receive the resources and visibility it needs to
make a difference.
The structure of the local CERT program will affect where it looks for support.
CERT programs are most often sponsored by public agencies. Occasionally,
CERT programs establish a separate nonprofit organization, or are sponsored by
an educational or business entity, but they must always be endorsed by local
government. Where multiple agencies or organizations are involved, obtain
support from all of them.
The source of support for managing the CERT program’s risk may differ among
programs. If the CERT program is just beginning, then support may well come
from some of the same leaders who are involved in establishing the program. If
the CERT program is already established, then an advocate for managing risk
will usually seek supporters from the leadership of the CERT program and the
sponsoring organization.
Obtaining management support often requires diplomatic skills. Leaders who
oppose the use of “non-professionals” - especially in operational activities - may
see liability as an argument against starting or maintaining a CERT program. Not
everyone understands the role and importance of CERT, therefore, it helps to
begin with leaders who already support the CERT program and appreciate its
value to the community. It is wise to anticipate questions and objections, and you
should prepare responses before engaging leaders. Be prepared to negotiate
differences with leaders and to help resolve differences of opinion.
Obtaining initial leadership support is just the beginning. Managing risk is an
ongoing process, so support must be nurtured, expanded, and revisited when
circumstances change or new information is identified. Think about Step One as
playing a role in each of the following steps.
PAGE 5
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Step Two – Gather Information
During this phase, it is important to gather information about the local CERT
program’s history, activities, protocols, and the community’s environment, which
can help the local program identify its liability exposures. Risk management is
successful only if it is grounded in the characteristics of the CERT program, its
sponsoring agency, and the community.
Start off by reviewing the CERT program’s written materials and talking to key
players. Ask them to suggest others who may have useful information. Look for
references in the written materials to other documents or people. Build upon that
foundation by following up with the additional sources.
The following are suggestions for beginning an
inquiry about liability exposure:
What type of organization is the CERT
program sponsor?
Most sponsors will be public safety agencies.
For much of the following discussion, the type
of sponsoring organization is unimportant
because the process for managing risk follows
the same steps. For some issues, the type of
sponsoring organization is important For
example, some public agencies provide
governmental immunity to government-
sponsored volunteers and this is not available
to their nonprofit or business counterparts.
Does the sponsoring agency have standard
operating procedures or other policies and procedures that govern the
operation of the CERT program?
These documents establish the expectations for management of the program
and may address important topics such as recruitment and screening, work rules,
and activation procedures.
Does the CERT program or the sponsoring agency have documentation
beyond the CERT Basic Training materials that describes members’
activities and responsibilities?
The key to identifying liability exposures is to know what members will be doing.
The CERT Basic Training course cross-trains members for operational activities,
so separate position descriptions are not required. Does your CERT program
have documentation of the requirements of any activities that are not included
within the CERT Basic Training course (for example, in supplemental training
materials or descriptions of non-operational community service opportunities)?
What is a liability exposure?
Liability is a legal responsibility,
especially for one’s acts or
omissions. “Exposure” to a certain
type of liability exists when an
organization or person engages in
activities that create the possibility
for liability. Not every organization is
“exposed” to all types of liability (for
example, a CERT program and its
volunteers are not “exposed” to
motor vehicle liability if they do not
operate motor vehicles as part of
CERT activities).
PAGE 6
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Are other organizations closely involved with the CERT program?
Each organization’s risk should be considered separately, because each has its
own liability exposures.
Does the CERT program or the sponsoring agency already have
volunteers?
Gather documentation about current and past volunteers and review past claims,
losses, or "near-miss" events that can help identify the CERT program’s liability
exposures.
Does the CERT program have members under the age of 18?
A CERT program that has members under the age of 18 may have to comply
with child labor law and must train its personnel about special issues related to
interaction with minors, adapt its procedures to protect minors, and document
parental consent for their participation in the program.
Does the CERT program have a set of forms that members are instructed to
use during operational activities?
CERT Basic Training provides forms that are designed to document operational
activities and communicate necessary information. Individual CERT programs
may adopt other forms as well. Consistent use of adopted forms is important, so
gather a complete set.
Are the members of a CERT program sponsored by a fire department
identified as “members” in the fire department’s by-laws?
Identification as “members” of a fire department may entitle volunteers to
different protection under the law or the department’s insurance in some
circumstances.
Does the sponsoring agency or local government have a safety officer,
human resources officer, or risk manager who handles injuries to CERT
members?
If so, that person can provide information about the current program for
managing CERT member injuries and about any injuries that have occurred.
Does the CERT program keep written training records for each member?
Training records document the training completed by each member, including
supplemental training.
Does the CERT program deploy teams to other states to assist in disaster
response?
If yes, find out whether the program works with state emergency management
officials to ensure that CERT members are designated as part of the state’s
response force under the Emergency Management Assistance Compact.
The information gathered in Step Two forms the basis for Step Three.
PAGE 7
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Step Three – Identify and Analyze Risk
Step Three focuses on identifying and analyzing risk. This process lays the
foundation for Step Four. Who conducts Steps Three and Four depends on the
CERT program’s needs and resources. A key person is likely to do the ground
work of actually reviewing and distilling the existing information for a larger group
of stakeholders. If possible, this key person should involve or consult with the
sponsor’s or local government’s risk manager or attorney, who will be able to
provide a broader perspective on potential liability. The information gathered can
be brought to the key stakeholders to discuss how the CERT program’s activities
might result in liability, and how liability would affect members, the program, the
sponsoring agency, and the public.
It is important to emphasize to all stakeholders that actively addressing liability
does not mean that CERT programs are too risky. Liability risk is part of all
activities. The goal of risk management is to ensure that the risk is outweighed by
the benefits. CERT members who are properly selected, trained, and managed
pose no greater risk of liability than do paid personnel performing the same
activities.
Identify risk.
The first part of Step Three is to consider everything that has been learned about
the CERT program and imagine how liability could result.
First, consider the different types of civil liability that volunteers and CERT
programs should be aware of. Civil liability results when there is legal basis for
holding someone responsible for injury or damage. The four main types of civil
liability that apply to CERT programs include:
• Negligent acts or omissions —The failure to fulfill a duty to use “ordinary
care”, which is the care that a reasonable person would use under similar
circumstances. Any activity in which carelessness can cause injury or
property damage may be considered negligent.
• Intentional acts — Intentionally committed wrongful act; this may require
proof that person intended to cause harm.
• Strict liability — Legal responsibility for damages based on the nature of
an activity, rather than on a negligent or intentional act. Because CERT
members are trained only to respond to events they’re capable and
trained to handle, strict liability exposure is limited.
• Liability for the acts of others — Legally responsible for actions of
someone you have the right to control. An employer is usually liable for
job-related actions of its employee. Failing to screen or train a volunteer
may result in CERT program being liable.
PAGE 8
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Activities are a primary driver of liability, so each activity deserves individual
attention. CERT Basic Training materials emphasize safety and are an excellent
resource for identifying risk related to CERT’s baseline operational activities. Also
consider the non-operational community service opportunities that are not
described in CERT Basic Training., because they also have risks, for example,
lifting heavy — or not so heavy — boxes of brochures, driving motor vehicles,
helping to manage crowds or traffic, distributing materials from house to house,
to name just a few.
Organizational responsibility is also a driver of liability, and several organizations
may share responsibility for a CERT program and its members. CERT members
are often trained by the employees of more than one public safety agency.
Conversely, a business that sponsors a CERT may be responsible for its CERT’s
activities only until the CERT is activated to respond to an emergency under the
command and control of its affiliated emergency response agency. It is not
enough to identify what can go wrong. To address liability, it is also important to
know who is responsible to prevent that outcome.
Review of loss history and near-miss events is part of any risk management
effort because an event that has occurred previously can occur again, especially
if the underlying cause was not addressed. In most CERT programs, however,
there will have been few or no prior events that resulted in losses. If the program
has a history of losses or near-misses, consider the risks, but do not be limited
by it.
Standard operating procedures and rules of conduct minimize liability by
instructing CERT leaders and members how to carry out their responsibilities.
They also suggest the types of liability they seek to prevent, and thus can be
useful risk identification tools.
The absence of procedures that address recruiting, screening, accepting,
supervising, and terminating members increases risk. A CERT program that does
not have and consistently follow such procedures is more vulnerable to liability
based on its members’ negligent or wrongful actions and on members’ claims of
wrongful discrimination. If the CERT program has no procedures, put this on the
list of issues to address in Step Four.
Some CERT programs activate their members for response. For those programs,
the absence of procedures for and documentation of activation, assignment, and
deactivation is also a risk. Procedures help ensure a consistent activation and
deactivation approach, and documentation can serve as useful defense evidence
in the event a claim is made against a volunteer or the program. Keep in mind
that instructing members/teams to self-activate does not eliminate all chances of
liability, as will be discussed later in this Guide.
PAGE 9
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Look for any circumstances under which CERT members might respond outside
their home state or jurisdiction. Members responding in another state or
jurisdiction may be operating in a less familiar environment and have different
liability and injury protection than is offered in their home state.
Peer discussions with other CERT programs can help identify risk. It is difficult to
anticipate liability that has not yet occurred. Fortunately, most CERT programs
do not have a substantial loss history from which to draw. Pooling knowledge
with other CERT programs allows a program to benefit from others’ experience.
Analyze risk.
The second part of Step Three is analyzing the identified risks to estimate their
likely consequences for the CERT program, its sponsoring agency, and its
members. Consider two things: how often liability is expected to result, and what
the associated costs would be when it does. In addition to costs such as payment
of judgments, settlements and member injury claims, remember intangible costs,
such as damage to the CERT program’s reputation and partnerships. Focus the
analysis on identifying risks that can cause the greatest harm.
Step Four – Adopt Strategies to Manage Risk
There is no single correct approach to managing a CERT program’s liability risk.
Practices used by CERT programs differ significantly, and these differences
provide an opportunity for CERT programs to learn from one another. The
Appendices of this Guide provide examples of approaches that CERT programs
throughout the U.S. have contributed to help their peers.
Ideally, strategies for managing liability in a CERT program are implemented
before the program begins. In reality, they are often adopted over time as the
need appears. Whatever a CERT program’s current state of development is, the
following strategies are worth considering.
Position descriptions.
Position or job descriptions are important risk management tools for most
organizations. They help the organization identify risk and ensure the best fit
between applicants and jobs.
A CERT program’s need for position descriptions with regard to operational
activities is satisfied by the CERT Basic Training course. These materials provide
an excellent resource for identifying risk and CERT program policy of cross-
training all members for operational activities gives both the CERT program and
the potential member an opportunity to assess the fit. Development of position
descriptions for the activities included in the CERT Basic Training course is
therefore not necessary for risk management purposes.
PAGE 10
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Some CERT programs offer supplemental training for functions beyond those in
the CERT Basic Training course. If they are sufficiently detailed, the training
materials for those functions can serve the same purpose to document
operational activities for specific positions.
Some CERT members may assume managerial responsibilities. These include
the CERT leader and any section chiefs designated by that leader during an
operational response. Their responsibilities require additional management,
communication, documentation, and organizational skills, and their decisions
may affect the safety of more people. Consequently, their liability exposures are
broader than those of team members who are assigned to individual tasks.
Supplemental position descriptions for these responsibilities will help CERT
members prepare to discharge these additional responsibilities effectively and
with less risk for everyone.
Non-operational community service opportunities are different because CERT
Basic Training does not cover these activities. A CERT program should consider
developing an activity description for each community service opportunity it offers
and manages. In addition to providing a basis for identifying risk, these
descriptions can do the following:
• Identify which non-operational member activities are CERT related
• Provide an objective basis for determining eligibility to participate (i.e.,
prior training or qualifications)
• Provide information that helps members make a fully informed decision
about participating
• Establish supervisory authority and accountability
Here are some basic elements to consider including in community service
opportunity descriptions:
• Title of the opportunity
• Date(s) and location(s)
• Working conditions (inside/outside, extensive walking, etc.)
• Narrative description of purpose (usually a sentence or two)
• The essential functions (a brief description of each important activity)
• Required qualifications, if any (education, special skills, completion of
supplemental training, etc.)
• Required satisfactory completion of any additional background checks
• Required time commitment
• The title of the CERT leader in charge of that opportunity
Some CERT programs announce to their members community service
opportunities offered by other organizations. There is no need to develop activity
descriptions for opportunities in which the CERT program does not play a role,
but keep a copy of all announcements and be sure they clearly identify the
sponsor.
PAGE 11
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Membership management.
The CERT program mission means that its recruitment goals differ somewhat
from those of other programs. CERT programs recruit for multiple purposes.
First, CERT programs train members of the public about community emergency
preparedness, even if those people never go beyond meeting the needs of their
own families and neighbors. Second, CERT programs train people who are
willing to become involved in non-operational community service opportunities.
Finally, CERT programs train people who are willing to join CERT teams and
activate to support professional first responders in their immediate surroundings
and throughout the community.
To meet these goals, CERT programs cast a broad net to recruit participants for
CERT Basic Training. To manage the potential risk associated with new
participants, CERT programs often adopt a formal application, screening, and
acceptance process, especially for those who want to take a response role in
CERT. The application and screening process is a risk management tool, but it
also poses its own risk if it is discriminatory or inconsistently followed.
Application
Complete and accurate information about potential CERT members is a
powerful tool for reducing risk. Using a standard application form helps the
program collect consistent information about each applicant. Application
forms that require the applicant to sign a statement agreeing that the
information provided is accurate and complete (the language used may vary)
may also discourage misrepresentation. In addition, the application form can
include language that:
• Notifies applicants that the CERT program will verify the information
provided and reject the application if it is inaccurate or incomplete
• Obtains the applicant’s written permission to conduct specific types
of background checks, as discussed under Screening below
• Notifies the applicant that any position offered will be “at will” and
subject to termination at the CERT program’s discretion
The content of application forms used around the country may vary, because
the content must meet the needs of each CERT program. Avoid including
questions that could lead to actions that would be discriminatory in an
employment setting (for example, questions about age, race, religion,
national origin, pregnancy, disability, health problems, and prior workers’
compensation claims). Several forms used by existing CERT programs are
included in the Appendices as examples. Prior to use, it is advisable to have
the application form approved by an attorney or a human resources
professional familiar with federal law and your state’s employment law.
Programs that accept participants under the age of 18 should also require
the youth to provide a parent’s or guardian’s written permission to
participate. This can be included on the application form.
PAGE 12
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Require any participant and, if the participant is a youth, his or her parents or
guardians, to sign a written waiver of liability that describes the risks of the
CERT program’s activities. Waivers of liability are often not enforceable
under a state’s laws, especially against minors, however, a waiver that
describes the activities and associated risks shows that the volunteer (and
his or her parents) knew of the risks and chose to participate. Waivers can
also be useful in settlement negotiations. Check with an experienced
attorney for advice on the best language to use in your state.
Interview
Some CERT programs conduct personal interviews of applicants. Interviews
may be conducted prior to training or as a requirement for joining a team
after training. Interviews can help assess the applicant’s suitability for a
team, and, if conducted improperly, they are also a potential source of
liability or bad publicity based on wrongful discrimination.
If the CERT program conducts interviews, use the same caution as for paid
positions. A standardized list of interview questions helps the interviewer
gather all the required information and reduces the chances of asking a
discriminatory or other problematic question. Have the questions pre-
approved by an attorney or a human resources professional familiar with
federal and state employment laws. Inevitably additional conversation and
follow-up questions occur, so be sure CERT interviewers know how to make
good decisions about follow-up questions.
Screening
Screening verifies an applicant’s representations and identifies background
or history inconsistent with the responsibilities of the position. Programs
make different decisions about when and how they screen. Some screen
only applicants who want to be included in a team activated for response.
Others screen applicants before they are admitted to CERT training. If the
CERT offers membership to applicants before screening is completed, the
offer should be in writing and contingent upon the satisfactory completion of
the screening.
An incorrectly managed screening process can be a source of liability either
for wrongful discrimination against an applicant or for failure to screen
adequately to identify an applicant who poses a risk to the community. To
avoid claims of wrongful discrimination, screen all applicants in the same
manner. Identify in advance how the program will address specific findings
and equally enforce those consequences with all applicants. To avoid liability
for failure to identify an applicant who poses a risk, be certain to meet state
requirements for screening individuals who will work with vulnerable
populations. Keep complete records of all screening results for both
accepted and declined applicants, and be certain those results are
addressed consistently with each applicant. Screen CERT applicants in a
manner consistent with paid employees who perform similar functions. When
developing screening protocols, it may be helpful to consider protocols used
by surrounding jurisdictions.
PAGE 13
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Do not begin screening without the applicant’s written permission for the
specific types of screening the program will use. Consent may be obtained
on the application form or a separate consent form signed prior to screening.
The consent should identify the specific screening to be performed and
include an agreement that the applicant releases and holds harmless from
liability the program and any person or organization that provides information
about the applicant. The sponsoring agency’s existing policies and
procedures for screening employees or emergency response volunteers may
be helpful models. Additional examples are included in the Appendices.
Common screening approaches include:
•Volunteer interviews.
•Reference checks. Contact employers for which the applicant has
performed paid or volunteer work and any personal references
identified by the applicant.
•Criminal background checks. Criminal background checks may not
be required for every member, but they are advisable (and may be
legally required) when members’ work puts them in a position to deal
directly with vulnerable individuals, such as children, the elderly, people
with disabilities, and disaster survivors. Check with local police to
determine the appropriate agency, which may include a state law
enforcement agency or department of justice.
•Fingerprinting. Fingerprinting is one component of a criminal
background check. Contact the local police department.
•Drug testing. This is more invasive testing and thus should be used
with caution. If drug testing is necessary, consider contracting with a
private vendor who provides good recommendations from trusted
sources.
•Driving record checks. Driving record checks are good practice for
members who will operate their own or the sponsoring agency’s motor
vehicle as part of CERT activities. Contact the state department of
motor vehicles for procedures.
PAGE 14
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Acceptance and offer
The procedures used to accept members from the pool of applicants differ
among programs. Any process that is based on consistently applied
objective criteria and is not wrongfully discriminatory will help the program
avoid liability and unfavorable publicity.
The program can avoid possible misunderstandings by putting information
into a written offer letter or service agreement to be signed by the member
and the member’s parents, for minors.
The information should include:
• Name, address, and contact information for the member
• Title of position (“CERT Member” for example)
• Effective date
• A statement that the member’s appointment is “at will” and can be
terminated at any time by the program or by the member
• Any contingencies the member will have to fulfill before the
appointment is official, such as screening or completion of training
• Any specific requirements the member must fulfill after the
appointment is official, which could include participating in program
activities a minimum number of hours per month, attending refresher
training, etc.
Other information and commitments may also be included:
• A description of benefits (such as workers’ compensation or accident
and injury insurance and liability protection) and privileges (such as
use of sponsoring agency vehicle or personal vehicle on program
business) that apply to the member
• A waiver by the member of program and sponsoring agency liability
for injury, illness, or death sustained by the member in connection
with CERT service
• An Oath of Allegiance, which may sometimes be required by state
law for the member to qualify for liability and injury protection as an
emergency or disaster volunteer
• Any requirement that the member must meet to use a personal
vehicle on program business (for example, to maintain liability
insurance)
• Acknowledgement that the member has received a copy of the
program’s policies and procedures (or member Handbook) and will
comply with their terms (including any work conduct rules)
• A commitment by the member to maintain the confidentiality of
certain information
Any statements made in the offer letter or service agreement will be a
binding commitment by the CERT program and the member. Consequently,
use great care in describing benefits (for example, do not refer to accident
and sickness insurance as workers’ compensation coverage). Secure legal
PAGE 15
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
or human resources approval of the offer letter or service agreement before
adopting it for use in the CERT program.
Privacy of volunteer records
The recruitment and selection process generates written information about
potential members that can be highly confidential. Disclosure of this
information can harm the individual and expose the CERT and its sponsor to
significant liability. Consequently, the confidentiality of all volunteer records,
including information about unsuccessful applicants, should be respected to
the same degree as the records of sponsoring agency personnel.
Work and conduct rules.
CERT programs are often sponsored by public safety organizations that operate
in high-risk environments and adopt strong management practices to help them
safely achieve their missions. CERT members usually do not face the same
degree of danger as professional emergency responders, but CERT programs
that follow management practices geared to their operations can operate more
safely and better manage liability.
Clear work and conduct rules are an important management practice. They
provide guidance on how members carry out their responsibilities and apprise
them of actions that the program considers to be unacceptable. Work and
conduct rules let members know what is expected of them and provide the
program with an objective basis for managing performance and, if necessary,
terminating members. These rules should include even the obvious – such as
prohibiting sexual harassment and disclosure of confidential information. Identify
within the work and conduct rules any infractions that warrant immediate
termination. Refer to the program’s progressive discipline and termination
procedures, if the program has them. Give each CERT member a copy of the
rules and require the member to sign an agreement to obey them.
The following are examples of work and conduct rules that can help reduce the
chance of liability:
Time commitments and records
Require that CERT members meet the program’s minimum time
commitments (if any) and that they record their time when engaged in
program activities.
Periodic retraining and background check requirements
Require that CERT members meet the program’s periodic retraining and
background check requirements.
Uniforms and program issued identification
Require that CERT members wear “uniforms” and carry program
identification while they are participating in CERT activities. The uniforms
may be simple – a program logo T-shirt, a safety vest, and a hard hat, when
PAGE 16
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
appropriate. Uniforms and identification help the program prevent
unauthorized persons from accessing restricted areas and posing as
program members.
Because logo materials and identification represent the member as part of
the CERT and a representative of any agency whose name is on the
materials and identification, clear instructions should be given about when
they are – and when they are not – permitted to use those items.
Procedures for reporting injuries, illnesses, accidents, and property
damage
Require CERT members to report any injuries or illnesses they believe to be
related to their CERT activities. Give them detailed instructions about when,
how, and to whom reports shall be made based upon written program
procedures. Also require them to report any accidents they have in a motor
vehicle and any injuries or property damage they cause while participating in
CERT activities.
Compliance with safety rules, including use of required personal
protective equipment
CERT members usually do not engage in activities that require the kind of
personal protective equipment used by firefighters, however, their activities
may require protective headgear, safety vests, goggles, gloves, or dust
masks. If the CERT program has responsibilities that require the use of
personal protective equipment, make its use an explicit requirement in the
position descriptions and work rules and enforce that requirement.
Statements to media
Require that CERT members refer media representatives to a designated
public relations contact.
Confidentiality and privacy
Prohibit disclosure of confidential or private information about the program,
its members, the sponsoring agency and its employees, members of the
public, and others.
Wrongful discrimination
Prohibit discrimination, including but not limited to discrimination based on
race, gender, religion, color, national origin, age, marital status, disability,
and sexual orientation.
Harassment (sexual and other)
Prohibit all harassment as well as the display of sexually suggestive or other
offensive materials.
Alcohol and drug use
Prohibit the use of alcohol, drugs, or substances that can impair physical or
mental functioning while participating in CERT activities.
PAGE 17
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Smoking
Prohibit smoking while participating in CERT activities.
Cell phone usage
Adopt reasonable restrictions on personal cell phone use while participating
in CERT activities and prohibit any cell phone use while driving as part of
performing CERT activities.
Photography
Prohibit photography while participating in CERT activities unless it is
ordered by the member’s supervisor and taken with the CERT program’s or
the sponsoring agency’s equipment. Assure that members have signed a
release form to allow the program to use their image in any print or digital
material to which the program might contribute or that the program might
produce itself. Require the supervisor’s approval for any publication or
distribution of photos, and prohibit members from using any photographs
taken while participating in CERT activities for private purposes. Digital
cameras and the Internet increase the chance that a photo taken by a CERT
member could be widely published in violation of a subject’s privacy rights,
and the program and sponsoring agency could be liable to the subject for
damages.
Personal use of computers/e-mail
Prohibit personal use of sponsoring agency’s or CERT program’s computers
and e-mail.
Carrying weapons
Prohibit members from bringing weapons to CERT activities unless they are
sworn law enforcement officers and carrying the weapon is part of their job.
Reporting changes in driving record, criminal background, or
professional licensure status
Require members to report any change in their driving record, criminal
record, professional licensure, or other record required for the position they
hold.
CERT training.
Training helps CERT manage liability because it helps CERT members know
what is expected of them and prepares them to deal safely and effectively with
the situations they are likely to encounter. Training is especially important for
CERT’s operational activities. Deploying CERT members into emergency
situations without adequate training would increase significantly the likelihood of
liability for the sponsor, its trainers, and CERT members.
Fortunately, CERT programs do not have to create a training program from the
ground up. The CERT National Program Office at FEMA has an extensive pre-
prepared training curriculum that is available for download online at
PAGE 18
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
http://www.fema.gov/community-emergency-response-teams/training-materials.
The CERT Basic Training course materials include a Participant Manual, and an
Instructor Guide and PowerPoint files for use by CERT trainers.
The materials provide background information and describe CERT procedures in
detail. This national baseline for CERT training promotes consistency among
programs and makes it more difficult to argue that a program is not training its
members adequately.
CERT training provides information to help members respond safely in
emergencies; it does not establish inflexible standards to which members must
strictly adhere. Inflexible standards could increase liability risk for CERT
members who must adjust or even disregard a particular part of CERT training
based on the circumstances at the scene. Consider including on any CERT
materials that might be construed as standards, including training, a statement
that the content does not replace what a reasonable person would do under
similar circumstances, and that the content may be adjusted or disregarded
based on circumstances at the scene. Review standard operating procedures
and other program materials to be sure they do not suggest that they impose
inflexible standards. An exception may be work rules that prohibit certain actions
(for example, sexual harassment) that are never appropriate. Consult with an
attorney for advice on establishing the right balance under the state’s law.
It is good practice to maintain training records that identify the members who
were trained, when they were trained, and the topics covered. Records help
manage the training schedule and ensure there are no training gaps. If the
training of CERT members becomes an issue in a lawsuit, the records will
document that the appropriate training was provided.
CERT training is a more effective risk management tool if the CERT program
requires refresher and ongoing training for members who join CERT teams.
Refresher training enables members to maintain their current skill levels and
informs them of any updates in procedures. Without refresher training, skills will
rapidly be forgotten and the chances of liability increase. Information about
planning and delivering refresher training is available online at
http://www.fema.gov/community-emergency-response-teams/training-materials
CERT programs can customize their training to better reflect the community’s
hazards and vulnerabilities and the characteristics of the group being trained.
Step 5 of the CERT document Starting and Maintaining a CERT Program
contains information on tailoring training, located at
http://www.nationalservice.gov/sites/default/files/resource/tads-CERT.pdf. Some
additional topics to consider addressing include:
• The mission and goals of the sponsoring agency and the CERT program
• The chain of command in the sponsoring agency and the CERT program
• The program’s work and conduct rules
PAGE 19
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
• The benefits offered to participants, including any liability and injury
protection provided to members by the program or by law
• Periodic re-training requirements
• Procedures for volunteer evaluation and termination
• Training for additional skills, community service opportunities, or other
non-operational CERT activities that are not covered by the CERT Basic
Training course
Developing and distributing a member handbook helps members remember this
information and can also serve as an important foundation for the program’s
performance evaluation, progressive discipline, and termination procedures. A
handbook can summarize information not included in the standard CERT
curriculum and should incorporate by reference the CERT Basic Training
Participant Manual. If you distribute a handbook, have each member sign an
agreement acknowledging receipt and agreeing to comply with its requirements.
The CERT Basic Training course is delivered in a classroom setting, so selection
and preparation of trainers is important. Good presentation skills are important to
hold students’ attention and effectively convey the information. Training is often
delivered by a sponsoring agency’s first responders, but a CERT program may
choose to use other instructors, such as experienced CERT members, to present
some of the units. The National CERT Program Office offers a framework to
guide the process of choosing and training instructors at
http://www.fema.gov/community-emergency-response-teams/training-materials.
In addition, FEMA offers training for CERT instructors (E428 CERT Train-the-
Trainer course), as well as training for local CERT program managers (E427
CERT Program Manager course). Both are offered at FEMA’s Emergency
Management Institute. More information about the courses and applications are
available at http://training.fema.gov/.
CERT members who want to join a CERT that is activated to respond to
emergencies are sometimes required to complete additional Incident Command
System training, such as ICS 100a and subsequent courses in that series. This
course is available online at http://training.fema.gov/EMIWeb/IS/IS100a.asp. Be
sure that completion of this course is part of the training record for any CERT
member who participates in operational response.
State and federal law mandate certain types of employee training, usually on
safety or discrimination issues (for example, federal and state occupational
safety and health laws (“OSHA”) require employers to train employees about
safety issues relevant to their positions. Some states require training of
employees about sexual harassment). Statutes that mandate training often
require that certain information be included and that trainees have an opportunity
to ask questions and receive an answer.
PAGE 20
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Mandatory training laws usually apply only to volunteers who are considered to
be employees under their state’s law, but this is not absolute. Some training
requirements may apply to volunteers. A few states extend their occupational
safety and health laws to volunteer emergency response personnel.
Environmental Protection Agency regulations require that volunteer firefighters
receive hazardous materials training. Even where training requirements apply
only to employees, the line between employee and volunteer under state law is
not always clear (for example, some CERT members may be considered
“members” of a fire department for purposes of workers’ compensation coverage,
which might tip the balance in favor of “employee” status). Check with an
attorney before concluding that CERT members are not subject to mandatory
training requirements.
Training decisions should not be driven solely by legal requirements. It is good
practice to train volunteers if the sponsoring agency would train an employee
performing the same activities. The relatively small training investment is offset
by the benefits of reducing the chance of costly liability.
Supervision, performance evaluation, progressive discipline, and
termination.
Every CERT program should assign a supervisor for its members. Ideally, a
supervisor should be an agency employee who is familiar with CERT
responsibilities and able to carry out the program’s performance evaluation,
progressive discipline, and termination procedures.
A CERT program invests significant time and resources in recruiting and training
members. Regrettably, an occasional member will be unable or unwilling to
perform as expected. A procedure for progressive discipline and termination will
help the CERT program manage these situations consistently and successfully.
The program should develop the procedure with the advice of an employment
attorney or skilled human resources professional. It is important that the
progressive discipline and termination process include:
• Clear identification of actions that warrant immediate dismissal rather than
progressive discipline (often those that present an unacceptable risk of
damage to property or injury to a person, or that evidence intent to do
harm or break the law)
• Consistent communication with the member of any deficiencies in
performance, the reasons for any disciplinary action, and expected
changes
• Written documentation of each step
• Administration in an objective, consistent, and non-discriminatory manner
A sponsoring agency that has adopted progressive discipline and termination
procedures for its employees and/or volunteer emergency responders but that
does not intend to apply those procedures to CERT members should consult with
PAGE 21
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
an attorney. It is very important to clearly identify procedures that apply to
emergency responders but not to CERT members. Failure to differentiate can
result in CERT members benefiting from procedures intended to apply only to
emergency responders.
Privacy is important in the disciplinary and termination process. Avoid making
written or oral public statements that could damage the member’s reputation and
possibly provide grounds for a lawsuit. Administer discipline and termination in a
private setting, with only the member, the supervisor, and a witness (who will
maintain confidentiality) present. Keep member files in a secure place at all
times, providing them with the same protection as the sponsoring agency’s
personnel files. If contacted for a reference on the member, follow the sponsoring
agency’s or the local government’s procedures for employee references.
Activation/deployment approaches.
CERT programs adopt different approaches to activation of members in
emergencies. Some CERT programs have a standard operating procedure that
instructs members in advance when and how to self-activate. Others require their
members to activate only when ordered. Still others may combine approaches,
permitting self-activation in the member’s immediate surroundings (i.e.,
neighborhood, university, or workplace) and issuing specific activation orders for
participation in larger emergencies.
Both forms of activation have benefits. The self-activation approach recognizes
the realities that people naturally respond to emergencies in their immediate
surroundings, and that they will respond more effectively and safely if they have
basic CERT training. The activation upon order approach enables the sponsoring
agency to maintain greater direct control of responding CERT members.
When adopting an activation strategy, it is important to understand that there is
no activation approach that guarantees against liability. On its face, self-
activation may appear to insulate the program leaders and the sponsoring
organization from liability by separating them from deployment or direction of
members. This fails to recognize two important factors.
First, there are links with the CERT program even if members self-activate.
• Self-activation may be pursuant to a standing order, and not all that
different – for liability purposes – from an order to activate issued at the
time of an emergency.
• CERT programs have multiple points of contact with their members. Even
if its members self-activate, an injured person might argue that the CERT
program has put the member in a position to respond and that CERT
training shaped their actions. An injured member might argue that CERT
training did not adequately prepare for the situation encountered.
• By accepting members and instructing them to self-activate, some might
argue that the CERT program has implicitly made a decision that the
PAGE 22
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
members are capable of responding without supervision, and an injured
person may question that decision.
• Even self-activated CERT members can appear to the public to be acting
on behalf of the CERT program if they carry officially issued CERT
identification, wear CERT identifying vests or personal protective
equipment, or identify themselves as CERT members during a response.
Any of the above might be argued as grounds for program liability, even if CERT
members self-activate.
Second, self-activation does not offer the risk control benefits of program
activation for specific emergencies. A CERT that activates its members to
respond to specific emergencies may reduce the chance that its members will
respond to situations that are beyond their capabilities. If CERT program
activation enhances oversight at the emergency scene, it can also help ensure
that members work within their level of training and comply with the CERT
program’s rules. Both of these effects reduce, although they do not eliminate, the
chances of liability.
Another concern is that self-activation may prevent CERT members from
qualifying for liability protection under various federal and state laws. This will be
discussed further below in Providing benefits for injured CERT members and
Protecting CERT members from liability.
Neither activation strategy eliminates a CERT program’s potential liability for the
acts of, or injuries to, its members. Each program should analyze the risks and
benefits of each approach and choose the strategy that is most effective for its
needs. Then acknowledge and manage the remaining risks.
Protection from the financial effects of liability.
Even the best risk control program cannot eliminate all liability. There remains a
small but real chance of an injury, property damage, or other harm. A sponsoring
agency has this “residual” risk from all of its activities – whether or not it sponsors
a CERT program. The cost of damages, defending a claim or lawsuit, and
providing injury benefits can be substantial, so no risk management program is
complete until there is a plan to pay these costs. Recruiting members is also
easier if there is a plan to protect volunteers from liability and to provide them
with benefits if they are injured or become ill.
While CERT programs are most often sponsored by a local government agency,
incorporated nonprofit organizations, businesses, or educational institutions may
coordinate training and organize teams. In addition, a few CERT programs have
established separate nonprofit organizations to raise funds. Thus, more than one
legal entity can be involved in a CERT, and each is responsible for protecting
itself and its officials, employees, and volunteers from the financial effects of
PAGE 23
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
liability. Protection for one person or legal entity – whether by law or insurance –
does not automatically protect others.
The remainder of this section summarizes different sources of protection that
may be available for CERT programs and their members. For a more in-depth
discussion and guidelines on how to investigate a specific state’s law, see
Finding Statutes and Bills Online (from the Citizen Corps Volunteer Liability
Guide) in the Appendix.
Providing benefits for injured CERT members
Statutory benefits. A paid employee who suffers a work-related injury, illness, or
death usually receives from the employer “no-fault” workers’ compensation
benefits, including replacement for lost wages and medical expenses. Most state
laws require employers to have workers’ compensation insurance or an approved
self-insurance plan to ensure they can provide these benefits to their employees.
To avoid double compensation, state laws usually limit an injured employee’s
right to sue an employer that provides workers’ compensation benefits.
Paid firefighters and emergency medical service (EMS) workers are “employees”
and are thus covered under their employer’s workers’ compensation coverage.
Unpaid volunteers, such as CERT members, often do not qualify for protection
under their states’ workers’ compensation laws.
In some states, CERT members are covered by workers’ compensation, or can
be covered at their sponsoring agency’s option. If they are covered, it is likely to
be under a provision in their state’s emergency management or homeland
security statute. Occasionally workers’ compensation protection will be available
because the state’s workers’ compensation statute specifically includes
emergency volunteers in its definition of “employee.” Benefits for emergency
volunteers may be subject to limitations or contingencies that do not apply to
regular employees.
The wording of the statute(s) is critical to determining whether coverage is
provided to CERT members during a specific CERT activity. One consistent
requirement in emergency management and homeland security statutes is that
the volunteer be engaged in emergency or disaster work, as defined by the
statute. Another is that the volunteer be registered with, accepted by, or working
under the direction of a state or local emergency management agency. Some
states protect during participation in drills and exercises, but others limit
coverage to emergencies or disasters declared by the governor. Thus, CERT
members are more likely to be protected during operational activities than during
non-operational or administrative activities. Members who self-activate,
especially without a standing order to do so, are less likely to be protected than
are members who are activated by an order of their sponsoring agency to work
under the agency’s direction. Find out what the sponsoring agency says it does
PAGE 24
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
and does not cover. Because state laws differ significantly, only a qualified
attorney can give state-specific advice.
CERT members who are considered to be “members” of a fire department may
have access to different protection. Again, the terminology used in the state’s
statutes is the key to making this determination. Some state laws require or
authorize workers’ compensation benefits for “members” of fire companies or
departments. Others do so only for volunteer “firefighters.” A state law that
requires or authorizes workers’ compensation benefits for “volunteer firefighters”
is less likely to protect CERT volunteers than is a law that protects volunteer
“members” of fire companies or departments. In states that mandate or authorize
workers’ compensation for “members” of fire companies or departments, an
amendment to the department’s by-laws or a local ordinance classifying CERT
members as “members” of the fire company or department may allow those
members to benefit from workers’ compensation coverage for purposes of those
activities.
Even if CERT members cannot receive administrative workers’ compensation
benefits, that does not preclude liability for their injuries or illnesses. An injured
CERT member who is not eligible for workers’ compensation benefits can file a
civil lawsuit seeking lost wages, medical costs, pain and suffering, and other
damages from an injury caused by the act or omission of someone else.
Potential targets of lawsuits include the sponsoring agency or local government,
other volunteers, trainers and team leaders, to name a few. The lawsuit will fail,
however, unless the target was at fault, the fault caused the injury and resulting
damages, and the target of the lawsuit is not protected by governmental or
another statutory immunity.
A different avenue for providing injury and illness benefits to injured volunteers is
accident and sickness insurance. This is discussed in the next section. Talk to an
experienced risk manager or attorney for additional information and options.
Accident and sickness insurance. If workers’ compensation is not an option,
“accident and sickness” insurance can provide some injury benefits to CERT
members. The local government or the sponsoring agency may have existing
accident and sickness insurance for its regular volunteers that can cover CERT
members. Compare the coverage provided under such insurance with the
benefits the program wants to provide. Volunteer accident and sickness
insurance sometimes covers only medical expenses, not lost income, has a
relatively low maximum payment, or pays only what the volunteer’s regular health
insurer does not pay. Also, before choosing this path, be sure that the policy
does not exclude emergency or public safety volunteers.
Waiver of liability. A written waiver signed by an adult CERT member can help
limit potential liability for injuries and illnesses. A waiver documents in writing that
the member understands the risks of the position and agrees to waive the right to
bring a claim for an injury or illness. It can thus help establish that the activity is
PAGE 25
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
not risk-free and that an injury does not necessarily mean the program was at
fault. It can also include written notice of any injury and illness benefits that are
provided.
The enforceability of waivers is governed by state law, and such waivers are not
equally effective in all states. States are usually unwilling to recognize an
advance waiver of liability for careless actions. Waivers for injury to minors are
even more problematic than waivers by adults, because state law often permits
minors to avoid their obligations under contracts they have signed. Waivers on
behalf of minors should be signed by both the minor’s parents or legal guardians
and the minor. Check with an attorney for advice on how to craft a waiver that will
have maximum effect.
Protecting CERT members from liability
Liability law enforces the critical social value of accountability by encouraging
individuals and organizations to use reasonable care and discouraging them from
committing wrongful acts. However, concerns about liability can discourage
volunteerism, which is another important social value. If these social values
remain in balance, society benefits from volunteerism without sacrificing
accountability. Thus, state and local governments and agencies that use
volunteers or promote volunteerism seek solutions that balance these values.
In most states, protective laws have been adopted over a period of many years
to address then-current needs. Volunteer liability protection takes two basic
forms: immunity (legal exemption of the volunteer from liability) and indemnity
(payment of the volunteer’s costs arising from a liability claim – such as
attorney’s fees, judgments, and settlements). Immunity and indemnity are
complementary. Immunity limits an injured person’s legal right to recover
damages from the volunteer, but does not pay any costs to defend the volunteer.
Indemnity does not limit the injured person’s rights to recover, but it provides the
volunteer with a legal defense and pays judgments and settlements, if necessary.
Some immunity laws are statutory, and others are part of the state’s common
(“case”) law. Indemnity may be provided by statute, by agreement, or a
combination of both. For the volunteer, it is ideal to have both immunity and
indemnity.
The critical points to remember are that immunity and indemnity vary greatly from
state to state and that they are helpful but do not provide complete liability
protection. Most immunity and indemnity laws have threshold requirements that
the volunteer must meet - such as type of activity and registration as a volunteer.
They uniformly exclude protection for gross negligence, willful misconduct, and
similar extreme conduct. Many also exclude protection for volunteers when they
are driving motor vehicles.
PAGE 26
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
The following are the general categories of volunteer liability protection. An
attorney can provide complete information about the scope of protection
available in a particular state.
Volunteer protection laws. The federal and many state governments have
adopted volunteer protection laws that provide certain volunteers with limited
immunity. The protection offered by state laws can differ, so this discussion is
based on the federal Volunteer Protection Act of 1997 (VPA).
The VPA gives individual volunteers who are working without compensation for
government or nonprofit organizations limited immunity from liability for harm
based on the volunteer’s actions. It does not protect any specifically described
set of activities, and so it can apply in both emergency and non-emergency
situations. It does not protect the organization that uses the protected volunteers.
Under the VPA, a CERT’s sponsoring agency can still be sued if otherwise
permitted by law, even if its member cannot.
The VPA and its state cousins include many exclusions. The VPA excludes
protection for volunteers who are operating a motor vehicle or other vehicle for
which the state requires an operator’s license or insurance. It also excludes
volunteers who are performing acts for which the volunteers are not appropriately
licensed or are not within their area of responsibility. It provides only immunity,
and thus does not provide for payment of legal defense costs, judgments, and
settlements. It does not protect against liability for gross negligence, willful and
wanton negligence, or similar extreme conduct. Despite these (and other)
limitations, however, volunteer protection acts may be the best source of
immunity for CERT members who volunteer for non-operational/community
service opportunities.
Emergency volunteer protection. The following types of laws provide liability
protection specifically to volunteers who assist in emergencies. Protection varies
and follows specific criteria set forth in the state’s statute. Check with an attorney
to determine what protection is available under your state’s law.
Good Samaritan laws: “Good Samaritan law” is the popular name for statutes
that provide limited immunity to individuals who, in good faith, without a duty, and
without compensation, help a person who is experiencing a health emergency in
a setting where there is no ready access to professional care. Protection is not
limited to declared emergencies, so Good Samaritan laws can protect people
who happen to be present at the scene of an emergency as well as CERT
members or teams who self-activate, if they meet the other requirements of the
statute. These laws are unlikely to protect CERT members in their non-
operational or administrative capacities. Every state offers some form of Good
Samaritan protection, but the scope of protection varies greatly. Some states
protect “any person” who tries in good faith to assist, while others require that the
“Good Samaritan” have certain professional qualifications (for example, as a
health care provider). In states that require the Good Samaritan to have specified
credentials, the protection is less useful to most CERT members.
PAGE 27
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Emergency management and homeland security laws: State emergency
management and homeland security statutes may provide limited immunity from
liability to individual CERT members who are working as registered emergency
or disaster workers. These laws sometimes provide indemnity as well. They are
most likely to protect CERT members who are ordered to activate and participate
in an official emergency response under the direction of an emergency response
agency. Members who self-activate under a standing order or standard operating
procedure may also be protected. Members who self-deploy without any order
are less likely to be protected by emergency management laws, but they may still
benefit from Good Samaritan protection. Check with an attorney or risk manager
to determine how activation methods affect CERT members’ liability protection.
Historically, organizations (such as businesses) that volunteer their resources in
an emergency have not been provided with similar liability protection. As the
important role of businesses and nonprofit organizations in emergency response
has become more apparent, however, there is increasing attention to protecting
them as well. State laws are thus beginning to incorporate protection for these
important partners.
Fire/EMS volunteers: Some states provide limited immunity to fire/EMS
volunteers. CERT members who work with fire and EMS organizations may
benefit from this protection. A statute that gives immunity to “all persons
providing voluntary service to a fire department, ambulance service, or rescue
squad” is more likely to protect CERT members who work for a fire or other
rescue service than is a statute that limits protection to “volunteer firefighters.”
Fire/EMS volunteer immunity laws often limit their application to active
fire/emergency response situations, so look carefully at the scope of activities
covered by the immunity.
Interstate mutual aid: Some CERT programs operate teams that are capable of
responding to disasters across state lines. Activities outside the home state often
raise concerns about the adequacy of liability protection in the state where the
aid is being provided. These concerns can be warranted, because protection
varies from state to state, and CERT members are protected outside their home
state only to the extent that the other state has adopted protection for emergency
management volunteers. Many states’ emergency management laws protect
emergency workers from other states who are responding to an official request
for assistance. It pays to be familiar with the liability protection provided by the
states to which the CERT(s) responds, but this can be difficult due to variation in
state laws and the speed with which response takes place in the aftermath of a
disaster.
The Emergency Management Assistance Compact (EMAC) is a partial remedy to
this challenge, but its effect is limited. Under EMAC, a responding state and its
“officers and employees” are protected from liability.
PAGE 28
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Local government employees, volunteers, and employees of businesses who
respond across state lines in a disaster are not protected by EMAC unless their
state designates them as part of its official response force. Those who self-
activate are not protected by EMAC. Do not rely on EMAC to protect your CERT
program’s members without legal advice.
Liability insurance/self-insurance. Liability insurance is a form of indemnity and is
an important tool for protecting CERT members. It does not prevent an injured
party from suing and recovering damages, but, from a CERT member’s
perspective, the protection of good liability insurance can be broader than
immunity. Liability insurance that covers emergency management volunteers is
less likely to have some of the exclusions and limitations that leave gaps in the
protection offered by immunity statutes, and, unlike immunity laws, liability
insurance also provides funds to pay defense costs, settlements, and judgments.
Some states require political subdivisions to provide their emergency volunteers
with liability insurance and others allow but do not mandate coverage. This
protection may be in the form of liability insurance or inclusion under a
government’s self-insured plan. In states where government volunteers also have
limited immunity, this can provide two-part protection.
CERT programs may be operated by or affiliated with many different types of
emergency services organizations. Any of these legal entities may have existing
liability protection for volunteers that could cover CERT members. Here are some
possibilities to investigate:
• The local government or agency liability insurance policies
• The local government’s self-insurance plan
• The coverage document from a public risk pool that provides insurance to
the local government or agency
• The volunteer liability insurance policy held by the local government or
one of its agencies (it may be possible to add CERT members to a
volunteer liability insurance policy held by another agency)
• A separately incorporated CERT or auxiliary program’s general liability
and directors and officers liability insurance policies
• A contract for fire/EMS services in which CERT members may participate,
including a nonprofit volunteer fire/EMS company’s contract to provide
services to a local government
• Mutual aid agreements
• Insurance available to volunteers through other affiliations if the volunteers
will respond in a dual capacity
The protection afforded by liability insurance, self-insurance plans, public risk
pools, and contracts is not all the same. With a knowledgeable risk manager or
attorney, identify and review available insurance and other protection to confirm
that it includes the CERT activities the program wants to protect.
PAGE 29
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Review insurance maintained by local governments to be sure it includes
volunteers and does not exclude emergency management activities. Find out
how the activation approach affects coverage: many sponsoring agencies do not
cover CERT members during self-activation. Identify any coverage required to
protect CERT members’ special activities. If no existing insurance coverage or
other protection is available, consider investigating commercially available
volunteer liability insurance policies.
Protecting CERT members from penalties for violation of license,
certificate, or permit requirements
This usually is not an issue for CERTs because their members respond within
the level of their CERT training, rather than in their professional capacity. The
functions they perform should not trigger the need for a license, certificate or
permit.
This issue might arise for professionals who are dual trained for CERT and
another emergency volunteer program. Clear activation procedures help to
differentiate when a volunteer is responding as a CERT member and when he or
she is responding with the other group.
If the issue of credentials arises, there is some statutory protection. EMAC
provides that states receiving assistance will recognize licenses, certificates, and
permits held by members of a responding state’s forces, subject to conditions
and limitations imposed by the state governor. Many states include similar
provisions in their regular emergency management statutes, without the explicit
requirement of a link to EMAC forces. Often these state-specific statutes
recognize existing credentials from another jurisdiction, but sometimes they just
state that their requirements do not apply to emergency forces working in a
declared emergency. Few states currently provide for recognition of retired
professionals who do not maintain a current license.
Protecting CERT sponsors from liability
A CERT sponsor’s best liability protection is the five-step process described
above, because it focuses on preventing the losses that result in liability.
Immunity and indemnity do not prevent a loss; they only shift the cost to the
injured party or to an insurer. Everyone wins if the loss is prevented.
The following are general categories of protection that may be available to the
sponsoring organization. Contact an attorney or an experienced risk manager for
complete information about the scope of protection available in a particular state.
Immunity. Governments and their agencies often benefit from governmental
immunity, especially during emergency operations. This immunity may extend to
liability for volunteers’ negligent actions and for volunteer injuries.
Because businesses and educational organizations that coordinate CERTs are
much less likely to have entity immunity, it is important that they operate under
the guidance of the community’s CERT program. The scope of immunity varies
substantially from state to state, and its application may depend on factual
PAGE 30
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
issues. It is good practice to obtain legal advice before relying on immunity. Even
if immunity is available, a source of indemnity is important to pay for defense.
Indemnity. CERT program sponsors that are government departments or
agencies are likely to have some protection through the local government’s self-
insured plan or liability insurance from liability for the negligent actions of their
volunteers. Talk to the local government’s risk manager or attorney to be sure
there is coverage and that there are no significant limitations (for example,
exclusion of volunteers or emergency management activities).
A CERT sponsor that is an independent emergency response organization (for
example, an independent volunteer fire company) may also have its own liability
insurance. A sponsor that buys separate insurance designed for emergency
response organizations is likely to be covered for liability arising from harm
caused by its volunteers, and its volunteers may also be covered. If CERT
volunteers are “members” of a volunteer fire/EMS company, those volunteers
may also be covered under the company’s workers’ compensation coverage.
Review any policies upon which the sponsor relies and consult with a risk
management or legal advisor to understand the limits of the protection provided.
Businesses and educational organizations that coordinate CERTs should check
their insurance carefully and consult with a risk manager or insurance agent to
determine whether it covers their CERT activities and volunteers, especially for
involvement in activities outside the coordinating entity’s own operations. Be alert
for any exclusion of emergency response activities. Explore with an attorney
whether an agreement that gives the local emergency management agency
control of the coordinator’s CERT members in an active response will help
separate the coordinator from liability for volunteers’ actions or injuries.
When relying on inclusion under another organization’s insurance or self-insured
plan, require written documentation of coverage for the sponsoring agency, such
as a current insurance certificate.
Workers’ compensation and accident and sickness insurance. A sponsor that
provides statutory workers’ compensation benefits to CERT members may be
protected under the workers’ compensation law from a lawsuit for the same injury
(referred to as “exclusive remedy” protection). Organizations that provide CERT
members with accident and sickness insurance do not receive exclusive remedy
protection, but combining accident and sickness insurance with a waiver of
liability signed by the CERT member may reduce the chances of being sued.
State laws differ on the exclusive remedy protection and in their recognition of
waivers of liability, so check with an advisor experienced in the state’s law before
adopting a strategy.
PAGE 31
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Step Five – Maintain the Momentum
Managing liability is an ongoing process. A CERT program’s activities, partners,
and environments change, and so must its strategies. Some strategies will be
less effective than expected, and so must be revised or replaced. The keys to
success are monitoring changes in the CERT program, evaluating the
effectiveness of adopted strategies, and making changes as needed.
The five-step process discussed above helps liability management in two ways.
First, it provides structure for a regular, fresh look at the CERT program’s risk
management approaches. Working through the five steps every few years –
especially with new participants - gives the program a fresh perspective on
vulnerabilities and new ideas about strategies. Secondly, the five steps suggest
how the organization can incorporate managing liability into its ongoing
operations, ensuring that everyone from the chief to the newest volunteer thinks
about liability when working.
Revisiting Step One – Get Leadership Support.
Changes in priorities - and even in upper management personnel - can diminish
support over time if the liability management effort does not maintain visibility and
demonstrate its value. Regularly scheduled reports to upper management about
activities and outcomes can help maintain upper management support.
Revisiting Step Two – Gather Information.
The environment of a CERT program is not static. Changes in the community or
the sponsoring agency will affect the operations and resources of the CERT
program. Although change is inevitable and often desirable, unrecognized
change is dangerous because it increases the chances of liability.
Stay alert for changes that affect the CERT program by reading reports, budgets,
and proposals for new activities and maintaining contacts throughout the
sponsoring agency, and the emergency management community, and the state
and National CERT Program Office. Empower CERT members to advise
program leaders of changes they observe. Review the CERT program’s
documents, including policies and procedures and position descriptions, to
ensure they are still accurate.
Revisiting Step Three – Identify and Analyze Risk.
When new activities or other changes in circumstances are identified under Step
Three, examine them and determine how they may increase the chances of
liability. Encourage everyone associated with the CERT program to think about
potential liability within the scope of their activities.
PAGE 32
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Empower CERT members to immediately correct problems within their authority
(anyone can wipe up liquid spilled on the floor to prevent a fall) and to report to
their supervisors problems that must be addressed at a higher level (for example,
the need for retraining in a specific procedure).
Revisiting Step Four – Adopting Strategies to Manage Risk.
When a new liability exposure is identified, work within the system to develop and
adopt a strategy. The information in this Guide, the CERT Web site, the Citizen
Corps Volunteer Liability Guide, and networking with other CERT representatives
are all resources that can help identify solutions.
4. Conclusion
CERT programs that consistently follow the process described in this Guide
benefit themselves, their sponsors, their members, and the community.
Programs that successfully manage liability are more likely to have long-term
viability because they are more useful and pose less risk to their sponsors. They
are also more attractive to new members, because they work in a safer
environment, have clear responsibilities, and may benefit from injury and liability
protection. Finally, the public benefits from the additional services performed by
CERT members, and is protected from harm by the program’s screening and
training procedures.
The National CERT Program Office welcomes thoughts, comments, suggestions,
and additional contributions to this effort. If you know of a resource that would be
helpful or an innovative program effort, or if you have comments or suggestions
about anything in this Guide, contact CERT at cert@dhs.gov.
PAGE 33
[This page intentionally left blank]
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Appendices
PAGE A-i
[This page intentionally left blank]
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Glossary
CERT member: An individual who has successfully completed the Federal
Emergency Management Agency’s CERT Basic Training course.
Community service opportunities: Non-operational activities engaged in by
CERT members, such as distributing disaster preparedness materials.
Hold harmless and indemnification agreements: An agreement, often part of
a contract or memorandum of understanding, in which one person agrees to
assume the liability and risk that may arise from an activity.
Indemnity: Protection against hurt, loss or damage; exemption from liabilities or
penalties.
Immunity: Exemption from liability under the law in situations where liability
would otherwise exist.
Incident Command System: The command and control structure that is the
organizing principle for emergency response in the United States and in many
areas of the world, and is used by CERTs.
Intentional tort: A deliberate act that causes damage for which there may be
liability. Examples include assault, battery, defamation, fraud, discrimination, and
trespass.
Liability: A legal responsibility, especially for one’s acts or omissions. The term
“liability” is often used to mean direct adverse financial consequences, such as
payment of damages, legal costs, and fines and penalties.
Negligence: Failure to act as a reasonable person would act under similar
circumstances, which can result in liability for damages arising from resulting
bodily injury, property damage, and personal injury.
Non-operational activities: See community service opportunities.
Operational activities: Emergency response and recovery activities undertaken
by a CERT under the command and control of a local government agency.
Professional errors and omissions/malpractice: Similar to negligence, but for
someone with professional skills or expertise: the failure to provide professional
services as would a reasonable person with similar skills or expertise. Medical
malpractice is a familiar example.
Risk: A measure of the potential for deviation from an expected outcome:
uncertainty.
PAGE A-1
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Risk management: A process of risk identification and analysis, risk
control/mitigation, and risk financing that seeks to reduce the negative
consequences of risk.
Sponsoring agency or organization: A government agency that endorses a
CERT and, in many cases, funds and administers the program, conducts
training, organizes teams, and sets program policies. Sponsoring agencies are
typically the local fire department, emergency management agency, or law
enforcement agency.
Strict liability: Liability imposed by law for harm arising from inherently
dangerous activities, even in the absence of the liable person’s fault.
Tort: A negligent or intentional act that violates a duty owed by a person or entity
to someone else, other than a breach of contract or statutory law, and that
causes damages that are recoverable under the law.
PAGE A-2
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Resources: Sample Documents
See each document on the following pages.
Butler County Kansas CERT
Application form
Organization and Standard Operating Guidelines
Fresno California CERT
Registration and Hold Harmless Agreement
Release Waiver and Indemnity Agreement for Volunteer Service
Volunteer Application Form
Workers’ Compensation Resolution
Los Angeles California CERT
Code of Conduct
Hold Harmless Form
Nassau County New York CERT
Acknowledgement of Information and Equipment
Background Check Request
CERT Activation Plan
Preparedness Memo
Training Evaluation Form
Santa Rosa County Florida CERT
Online Application Form - http://www.santarosa.fl.gov/citizencorps/cert.html
Stearns and Benton County Minnesota CERT
Criminal Background Check Consent Form
Volunteer Enrollment Form
PAGE A-3
[This page intentionally left blank]
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Resources: Links to Other Resources
CERT Resource Page
http://www.fema.gov/community-emergency-response-team-liability-guide
Links to information about liability during various CERT activities.
CERT National Website
http://www.fema.gov/community-emergency-response-teams
CERT training materials and other resources for local CERT programs.
Citizen Corps Volunteer Liability Guide
http://www.fema.gov/media-library-data/20130726-1844-25045-
0834/cert_liability_guide.pdf
A toolkit that provides an overview of liability issues affecting Citizen Corps,
liability checklists, and other resources.
Emergency System for Advance Registration of Volunteer Health Providers
Legal and Regulatory Issues Draft Report
http://www.publichealthlaw.net/Research/PDF/ESAR%20VHP%20Report.pdf
This publication provides a thorough discussion of liability, licensing, and
volunteer injury issues relating to volunteer health providers in emergencies.
Includes state-by-state details on some issues.
State Liability Laws for Charitable Organizations and Volunteers — 4th
Edition
Online Library of the Nonprofit Risk Management Center, www.nonprofitrisk.org.
Beginning with an overview of the liability environment, this publication provides
a state-by-state review of the evolving landscape of charitable immunity and
volunteer protection laws.
PAGE A-5
[This page intentionally left blank]
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Finding Statutes and Bills Online
This section is from the Citizen Corps Liability Guide.
Statutes
When researching the law online, it is important to distinguish between statutes
and bills. Statutes are current laws that have been passed by the state’s
legislature and signed by its governor. Statutory law is already in effect. Bills are
proposed law that have not yet been passed by the legislature and signed by the
governor. Bills are important to include in research because they show what the
statutory law may become.
Statutory Websites
Most states provide access to their statutes through a link from their website. The
page will usually say that it provides access to the state’s “code”, “statutes” or
“laws”. In most cases, the website for a state’s current statutes can be located by:
• Using the direct links provided in the Links to State Statutory and
Legislative Websites. While these links were current at the time this
Toolkit was released, links change from time to time, so it may be
necessary to conduct your own search.
• Searching the Internet for the state’s official website (search for the state’s
name or the state’s name and the word “statutes”) and looking on the
home page for a link to “statutes”, “code”, or “laws”.
Legislative Websites
Most states also provide a link from their home page to their legislature’s web
page. The legislature’s web page provides information about:
• Bills that have been introduced but have not yet passed, including each
bill’s status, text, and sponsors
• Bills that have been passed by the legislature
Links to the state legislatures’ web sites are also included in Links to State
Statutory and Legislative Websites. A state legislature’s website is an
important supplement to the statutory website because it often provides the most
current information about changes to the state’s law. It can take several months
for the state’s online statutes to reflect changes made by the legislature. New
legislation is usually posted more promptly on the legislature’s website.
Many states post a disclaimer on their statutory website, warning that the website
may not be current or accurate, or that the statutes posted are an “unofficial
version”. Be sure to obtain advice from a legal professional before taking any
action based on the statutes you find on the state’s website.
PAGE A-7
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Federal Legislation
Federal statutes and legislation can be accessed online through the GPO Access
website, http://www.gpoaccess.gov/. For federal statutes, look under the “U.S.
Code” link. Federal statutes and legislation are also accessible through the
Library of Congress’ website, Thomas, at http://thomas.loc.gov/.
General Guide to Finding Statutes
The following tools are often available to find statutes on a state’s website:
• Search for keywords
o Statutes as a whole: The state statutory website may provide a
search function for words likely to be in the statute. The search
function is similar to searching the Internet for a topic of interest:
type in the words that describe the topic and the search function
should provide relevant results.
o Particular statutes: It may also be possible to search lengthy
statutory text for an important term by using the find function, which
is under “edit” in the internet browser toolbar, or other find tools
available for the software being used.
• Browse (read through) the table of contents for the state’s statutes,
looking for topics where volunteer liability protection is likely to be located.
Browsing is similar to looking at a textbook table of contents to find a
section of particular interest.
• Search for statutory numbers. Statutes are identified by section
numbers for organizational purposes. If a statute’s number is available
from another source – for example in a handout from a meeting - that
number can be used to either search or browse the statutes.
Search functions may permit a search for more than one keyword at once: for
example, volunteer, liability, immunity and emergency. This type of search
produces fewer but usually more specific results. However, the narrower results
may exclude statutes that would be of interest. Note that search functions do not
all work the same way. It is important to read the website’s instructions for its
search function before beginning. Suggested search terms for different topic
areas are provided below. Alternative terms with similar meanings are separated
by “/” mark.
Every State is Different
Every state organizes its statutes differently. Some states, like Texas and
California, have a number of different “codes” not just one state code. Other
states have “titles” that are not part of the statute number, which can complicate
the search, as the researcher tries to determine in which title a specific section is
located. Be prepared for a learning curve.
PAGE A-8
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Civil Liability
Civil liability protection for emergency management volunteers can be found in
several different parts of state statutes. The most common locations are the
state’s emergency management act or in a Good Samaritan Act. Governmental
immunity under the state’s tort claims act may be extended to emergency
management volunteers through an emergency management or homeland
security act.
To locate emergency management and homeland security statutes:
• Use the citations provided in Links to State Statutory and Legislative
Websites for the emergency management acts in each state where one was
located.
• Search for:
o Emergency
o Disaster
o Military/military affairs/militia/civil defense/civil preparedness/defense
o Law enforcement
o Public safety/public health/health and safety
Results can be refined by combining one of the above terms with “immunity”
or “immune”, “liability” or “liability”, or “volunteer”
• Browse for:
o Emergency management
o Homeland security
o Military/military affairs/militia/civil defense/civil preparedness/defense
o Law enforcement
o Public safety/public health/health and safety
o Government
• Once the emergency management or homeland security act is identified, look
or search for sections that refer to:
o Volunteer
o Emergency management worker
o Disaster worker
o Liability/liable
o Immunity/immune
o Tort
o Claims
To locate statutes relating to governmental immunity:
• Locate the state’s emergency management or homeland security statutes, as
described above, and look for references to immunity or liability of public
entities, their employees and emergency or disaster workers during
emergency management activities. Immunity may be provided within the
emergency management or homeland security statute; or by providing
emergency or disaster workers “the same rights and immunities as” public
PAGE A-9
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
employees engaged in similar functions; or by referring to the section number
of the state’s tort claims act.
• Search or browse for:
o Tort claims
o Public employees
• If a statute providing immunity or other liability protection is identified, then
look for:
o Inclusion of emergency or disaster workers in the group protected by
immunity, and
o A section (including a definition) that treats volunteers as protected
emergency or disaster workers for purpose of immunity.
To locate Good Samaritan acts and volunteer protection acts:
Good Samaritan and volunteer protection acts are often part of a state’s statutes
on courts or judicial remedies. They may also be included in state licensing
statutes for certain types of licensed workers.
• Search for:
o Good Samaritan
o Volunteer
o Civil procedure/civil remedies/civil practice/civil proceedings/civil
actions/causes of action/actions/courts/judicial procedures/rights of
action
o Exemption from liability
o Emergency medical
o Professions/professionals
o Health professionals
o Public health
Results can be refined by combining one of the above terms with “immunity”
or “immune”, “liability” or “liability”, “volunteer”
• Browse for:
o Civil procedure/civil remedies
o Courts
o Professions/professionals/physician (or other professional group that is
of specific interest)
o Health and safety
o Public health
o Insurance/health security
• If a statute providing immunity or other liability protection is identified, then
look for the requirements to be in the protected group as defined and the
scope of protection provided.
PAGE A-10
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Workers’ Compensation
Workers’ compensation for emergency management volunteers will likely be
found either in the state’s emergency management or homeland security act or in
its workers’ compensation statute. Worker’s compensation statutes may be
referred to by other names, which are likely to include the word “industrial” or
“labor” in their title. The emergency management or homeland security act may
incorporate by reference the protection provided to state or local government
employees.
Locate emergency management and homeland security laws as described above
in Civil Liability.
• If a statute providing workers’ compensation for emergency or disaster
workers is identified, look for:
o Language extending protection to volunteer emergency or disaster
workers as well as those employed by a government
o A separate, more limited program for volunteer emergency or disaster
workers
To locate the state’s workers’ compensation act:
• Search for:
o Workers’ compensation
o Labor/labor and industry/labor and employment
o Industrial board/industries
• Browse for:
o Workers’ compensation
o Labor/labor and industry/labor and employment
o Industrial board/industrial commission
• If a statute providing workers’ compensation or other injury, illness or death
benefits for emergency management or disaster workers is identified then
look for:
o A definition of “employee” that includes volunteer emergency or
disaster workers, or
o A special section of the workers’ compensation or similar statute for
emergency or disaster workers, including volunteers
PAGE A-11
COMMUNITY EMERGENCY RESPONSE TEAM (CERT) LIABILITY GUIDE
Licenses, Certificates and Permits
Statutory provisions that recognize out of state licenses, certificates or permits or
waive those requirements in an emergency will likely be found in an emergency
management or homeland security act. Licenses for retired professionals who
are volunteer emergency or disaster workers are likely to be found in the state
licensing statute for that type of professional.
Locate emergency management and homeland security laws as described above
in Civil Liability. Refine the search by including the term “license” in the search, or
search or browse the statute for the word “license”.
To locate state licensing statutes:
• Search for
o Professions/professionals/specific name of a profession (architect,
engineer, physician nurse etc.)/professions and occupations
o Licenses
• Browse for
o Licensure statutes for the affected professions and occupations
• If a statute is found, look for:
o Waiver of license requirements during emergencies or disasters
o Recognition of licenses from other jurisdictions during an emergency,
and any limitations on that recognition.
PAGE A-12