Recently, several local agencies partnered with the national CERT program to release the CERT Liability Guide: A Risk Management Overview for Local CERT Programs. I’ve been a volunteer with the Montgomery County, MD Community Emergency Response Team (CERT) since March of this year and recently completed the CERT instructor course. I think the CERT program is one of the most proactive training and outreach programs available to local government and I firmly believe in the potential for CERT to expand and mature in the future.
As a relatively new program though, CERT is still developing infrastructure, foundational doctrine, and other best practices. The recently released CERT Liability Guide was sorely needed. I summarized the key points below:
“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.” (Page 1)
- In other words, currently there’s no evidence that CERT programs are more prone to lawsuits or liability than other similar volunteer programs within local government.
“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… 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)
- It’s probably best if the emergency management agency for each state were to conduct a review (usually with the Attorney General) of the liability implications for CERT programs and issue guidance using the specific laws, requirements, and exclusions specific to the respective state.
Benefits of Risk Management (Pages 3-4) include “confidence in the program, positive public image, reduced expenses, reduced insurance costs, preservation of the CERT program’s investment in members, increased participation in CERT”.
- There is little doubt that having a formal risk management process is helpful to an agency–if continued conscientiously. Many times volunteer agencies can suffer lulls in operational tempo, thus it is important to ensure certain activities/processes are given high priority. I would assert that a risk management program ought to be considered a high priority within volunteer organizations active in disaster, such as CERT.
The liability guide provides “Five Steps for Managing Risk” (page 4-32)
- Step #1: Get Leadership Support
- Step #2: Gather Information
- Step #3: Identify and Analyze Risk
- Step #4: Adopt Strategies to Manage Risk
- Step #5: Maintain the Momentum
I’ll review each step below
Step #1: Get Leadership Support
- “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.” (page 5)
Step #2: Gather Information
- “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.” (Page 7)
- “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.” (Page 7)
- “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.” (Page 7)
- 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.” (Page 7)
- Does CERT have a safety officer?
- Are written training records kept for all volunteers?
- “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 (EMAC).” (Page 7)
Step #3: Identify and Analyze Risk
- Civil Liability: Different types of civil liability: negligent acts or omissions, intentional acts, strict liability, liability for the acts of others
- Non-Operational Risk: 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…
- Standard Operating Procedures: Standard operating procedures and rules of conduct minimize liability by instructing CERT leaders and members how to carry out their responsibilities
- Absence of Procedures…the absence of procedures for and documentation of activation, assignment, and deactivation is also a risk.
Step #4: Adopt Strategies to Manage Risk
- Job 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.
- Managers Assume Broader Liability: 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.
- Standard Application Process: Using a standard application form helps the program collect consistent information about each [CERT] applicant…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)
- Written Permission for Minors to Join CERT: 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.
- Waiver of Liability: 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.
- Screening: 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.
- Written Offer Letter: 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.
- Uniform: Require that CERT members wear ―uniforms‖ and carry program identification while they are participating in CERT activities.
- Reporting Injuries/Accidents/Illness: Require CERT members to report any injuries or illnesses they believe to be related to their CERT activities
- 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.
- Smoking: Prohibit smoking while participating in CERT activities.
- 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.
- Supervision: Every CERT program should assign a supervisor for its members.
- Discipline and Termination: 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.
- Self-Activation May Not Reduce Liability: 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… By accepting members and instructing them to self-activate, some might argue that the CERT program has implicitly made a decision that the members are capable of responding without supervision
- Workers’ Compensation: 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.
- 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).
- 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
- Interstate Mutual Aid & EMAC: 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.
- Liability Insurance: 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.
Step #5: Maintain the Momentum
- 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.
The guide was an excellent resource for non-lawyers because it did a great job of explaining legal concepts in a way that laypersons can understand. For example, when explaining the differences between immunity and indemnity, the guide takes only a few sentences to clearly detail both concepts in an easy-to-understand way: “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…”
I would definitely recommend that CERT Program Managers read this guide in full–but not stop there. Then CERT PMs ought to take this guidance to their agency’s HR department and counsel to determine how to implement a robust risk management program for their volunteers. Most importantly, the conversation can’t stop there. There must be a risk management cycle that continues so that conversations about risks are common and routine. Just because CERT is volunteer-driven doesn’t mean we can ignore the risks, the liability, or legal implications of our actions.