May 29, 1975
Mr. Dennis W. Finch, Director
Labor and Management Relations
Department of Manpower Affairs
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-93
Who is employer under Rehabilitation Act of 1973?
Dear Mr. Finch:
The Rehabilitation Act of 1973, United States Public Law 93-112 provides for work experience programs to be set up by federal agencies for clients of state rehabilitation agencies. Such programs would provide no compensation for those participating in the work experience, but would simply provide facilities and instructors for the participants. Section 501(e) of this law provides:
An individual who, as a part of his individualized written rehabilitation program under a State plan approved under this Act, participates in a program of unpaid work experience in a Federal agency, shall not, by reason thereof, be considered to be a Federal employee or to be subject to the provisions of law relating to Federal employment, including those relating to hours of work, rates of compensation, and Federal employee benefits.
It is specified in Federal Personnel Manual Letter No. 306-6, relating to this subject, that working agreements between the state rehabilitation agency and the federal agency should be utilized, and it is at least implied from this letter and the quoted portion of Section 501 (e) of the 1973 Rehabilitation Act that this agreement should spell out the respective responsibilities of the two agencies to include the fact that these persons are not to be deemed as federal employees nor be eligible for federal employee benefits.
Your question to me is whether these persons participating in such work experience programs are, or may be covered by workmen's compensation; and, assuming an affirmative answer to that question, who could be considered the "employer" of these persons for purposes of providing the workmen's compensation coverage?
Naturally, the only person or entity that can provide workmen's compensation coverage to employees is the employer. The term "employer" is defined in SDCL 62-1-2 to include anyone, including the state, "using the service of another for pay." While this might be construed to exclude these persons since they are not being compensated during their work experience, I believe that the wording not only of this statute, but also of the definition of "employee" in SDCL 62-1-3, is so general that it sheds little light on this specific matter. This is especially true after an examination of several other provisions under title 62.
SDCL 62-1-4.1 provides coverage for students in a work experience situation essentially identical to this but applies specifically, and I would say solely, to school districts and elementary and secondary students. This section does, however, seem to espouse a legislative intent that the persons receiving such training should not have to bear the risk of a work related injury arising out of a work experience program.
SDCL 62-1-5.1 could be construed to provide coverage to persons receiving training through a work experience program in that it states that "Volunteer workmen rendering services in or for any agency, department, . . . " shall be deemed employees. It would appear, however, that such an interpretation would be hard to justify since the "services" rendered are primarily moving from the state agency to the participant rather than from the participant to the state agency. It also seems that the instant situation does not fit the Legislature's purpose for this section.
Finally, SDCL 62-3-17 provides for voluntary coverage of those employees specifically exempted from coverage by SDCL 62-3-15. From this I conclude that if a private employer can provide voluntary coverage where there is none according to the workmen's compensation law, the state can also provide such coverage though the statutes nowhere mandate that these particular persons be covered. I also conclude that not only can the state provide such coverage but that it should provide it in light of the clear expression of legislative intent contained in SDCL 62-1-4.1 and because a work experience participant wholly and permanently disabled from an injury sustained on the program, though not technically rendering services at the time of the injury, will be no more able to secure employment and earn a living than a person who has been so disabled from an injury sustained on the job.
SDCL 62-4-32 gives the director of labor and management relations the authority to approve the payment of workmen's compensation benefits to state employees. The coverage of the persons who are the subject of this opinion would thus be handled on a case by case basis as injuries occur. On the basis of this opinion, the director would accept coverage and approve payment of valid workmen's compensation claims of these work experience participants when and if they arise.
This opinion should not be construed as extending coverage to persons in rehabilitation training programs with private agencies since the situation addressed herein is solely a matter of the internal affairs of state government.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:brm
