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December 13, 2013

RE: Efforts Advance to Clarify the Status of Volunteers Under the Affordable Care Act

Dear Mayor:

On December 10, Representative Lou Barletta (R-PA) and Senator Mark Warner (D-VA) introduced legislation (H.R.3685/S.1798) clarifying that 'qualified emergency services volunteers' will not be counted as employees under the Affordable Care Act (ACA). If enacted, this would mean that fire and EMS agencies would not be required to offer volunteer personnel health insurance, even if they receive other nominal benefits.

The concern arises due to the fact that the Internal Revenue Service (IRS) includes volunteer first responders in the definition of ‘employee’ that it uses for Income Tax (W-2 form) purposes. Unless the status of these volunteers under the ACA is clarified, their agencies or municipalities could possibly be required to provide them with health insurance or pay a penalty.

We thank Congressmen Frelinghuysen, Lance, LoBiondo or Runyan for cosponsoring this legislation, which clarifies that volunteer fire and EMS agencies will not be required to offer health insurance to their volunteers under the ACA.

That legislation will be needed if this matter is not resolved by an appropriate interpretation of the ACA by the U.S. Department of Labor (DOL). The National League of Cities (NLC), our national association, is now working with DOL on this, and other matters.

We note that we now have a year before the ‘employer mandate’ goes into effect. We also note that the DOL, following Supreme Court guidance in its administration of the Fair Labor Standards Act (FLSA), has stated, “Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.”

Volunteers do not expect to receive health insurance from the agencies that they serve. Volunteering as a firefighter or EMS provider is not a career or a part-time job. Almost all volunteers are employed outside of the department that they serve and many of those employers furnish health insurance. If volunteers are treated as employees under the ACA, thousands of firefighters and EMS personnel across the country who donate their time and services to their communities could end up having their activities curtailed.

Volunteer fire and EMS agencies operate on a shoe-string budget and don't have sufficient resources to pay for health insurance for their personnel. Most departments have to raise money privately by hosting community events and dinners just to make ends meet.

Municipalities served by volunteer agencies cannot afford to offer expensive benefits. While many municipalities provide Length of Service Award Payments (LOSAPs) or other incentives to show appreciation to volunteers for their service, having to provide health insurance would be impossible.  The overwhelming majority of the funds that volunteer emergency services agencies raise are devoted to paying for insurance, fuel, electricity, training and equipment. For most volunteer departments, the cost of paying for members' health insurance would increase operating expenses to an unsustainable level.

We will keep you advised on this issue and on other developments regarding the ACA important to municipal governments. If you have any questions, please contact League Senior Legislative Analyst Jon Moran at jmoran@njslom.com or 609-695-3481, ext. 121.

Very truly yours,

Hon. Chuck Chiarello, Chair
NJLM EMS Task Force,
NJLM Past President and
Committeeman, Buena Vista Twp.
William G. Dressel, Jr.
Executive Director


 

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