TN 15 (06-12)
RS 02101.260 Employment Status of Volunteer Firefighters
1. Volunteer fire department
A volunteer fire department consists of volunteers who extinguish fires and provide other emergency services for a local jurisdiction. Some volunteer departments may operate where paid firefighters also provide emergency services.
2. Volunteer firefighter
Volunteer firefighters work part-time or on-call and may have other jobs. Although they are volunteers, employers may pay them as employees when they respond to an emergency or participate in training drills. An on-call firefighter may also volunteer time for other non-emergency duties such as training, fundraising, and maintaining equipment.
B. Volunteer firefighters as employees
Under the common law rules, volunteer firefighters are employees when they are subject to the will and control (i.e., how he or she will perform the work) of the person (or entity) for whom they perform services. A fire captain or a fire lieutenant supervises the volunteers. The rules on whether workers are common law employees or independent contractors are the same for firefighters as they are for other workers. Generally, volunteer firefighters are employees of the fire department or district where they provide services. Receipt of, or absence of the receipt of, payment for services does not alter the common law employment status of a volunteer firefighter. For rules on common law standards see common-law control test, in RS 02101.020.
C. Volunteer status (not an employee) for volunteer firefighters
The fire department may pay volunteer firefighters’ expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without the firefighters losing their status as volunteers. Section 3(e)(4)(A) of the Fair Labor Standards Act, 29 CFR 553.101, and CFR 553.103 provide that individuals are volunteers, not employees of a public agency when they:
are not employed by the same public agency to perform the same services (firefighting);
offer their services freely and without pressure (direct or implied) from the employer; and
provide service for civic, charitable, or humanitarian reasons without promise, expectation, or receipt of pay for the services rendered.
D. Coverage exclusion for emergency workers
Firefighters working regularly, but intermittently while on call, do not qualify for the emergency worker exclusion under Section 218(c)(6)(E) of the Social Security Act. This exclusion provides that services employees perform on a temporary basis in the case of earthquake, fire, flood, snow, storm, or other similar emergency are not covered under Social Security. The exclusion is for temporary workers responding to unforeseen emergencies, such as floods or hurricanes.
For related policy instructions, see
Exclusions to Section 218 Coverage for State and Local Government Employees in RS 01505.005B.1.,
Mandatory Exclusions in SL 30001.356C, and
Temporary Emergency Worker Exclusion: Resource Guide in SL 15005.010.
E. Expenses and reimbursements for volunteer firefighters
Volunteer firefighters may receive pay to reimburse them for expenses. Fire departments must pay expense payments (whether cash, in-kind benefits, or tax exemptions) to firefighters under an accountable plan. Under Section 62(c) of the Internal Revenue Code, an accountable plan must
allow no reimbursements for unsubstantiated expenses,
require that the volunteer firefighters return excess reimbursements timely, and
require workers to validate actual business expenses.
Reimbursement amounts that do not meet these conditions are wages. The fire department can pay the amount as a reimbursement, a per diem, or under a point system. If the amount does not reimburse actual, documented expenses, it is subject to Social Security and Medicare taxes as wages.
F. Developing volunteer firefighter cases
Volunteer firefighters may work in circumstances that establish an employment relationship, and they are employees. Regardless of being termed a volunteer, when a worker receives payments, and an employer-employee relationship exists, his or her pay is wages subject to Social Security and Medicare tax. Therefore, unless an exception under the Social Security Act applies, Social Security covers volunteer firefighter’s services. Firefighters may receive payments on a call basis, hourly, or monthly. In certain cases, firefighters may receive cash, bonuses, or in-kind benefits (in lieu of a salary) that may be wages. Employers report firefighters’ earnings on Form W-2 (Wage and Tax Statement) as wages.
To determine if a volunteer firefighter is an employee, develop the case using the SSA-7160 (Employment Relationship Questionnaire).
Fax and store the SSA-7160 in the Non-Disability Repository for Evidentiary Documents (NDRED). You can access the NDRED application at http://otsodiet.ssahost.ba.ssa.gov/ssawebapps.htm
For State and local government cases, refer to Public Law 110-245, the Heroes Earnings Assistance and Relief Tax (HEART) Act of 2008.
For the years 2008 through 2010, the HEART Act provides wage exclusions for the following state or local government payments to volunteer firefighters and volunteer emergency medical responders:
rebates or reductions of property or income tax, and
qualified payments (i.e., reimbursements for expenses or equipment allowances).