Volunteer Firefighting and “Junior Firefighters” – What Your Department Should Know

Perhaps no other area of the fire service law has more misconceptions and greater pitfalls than the sponsoring of youth programs within a volunteer fire department. This article is the first of a two-part series intended to identify and explain the differences in the types of youth programs recognized in the volunteer fire service in New York State. The three basic programs we will address are restricted member programs, Explorers, and statutory youth programs authorized by General Municipal law §204-b.

This article deals with restricted member programs that are given various names depending upon the fire department and the locale. Some fire departments refer to them as “junior firefighter” programs or separate junior companies, but that label, “junior”, is not determinative of the type of program. It must be emphasized that it is the structure of the program – not the name that it goes by – that defines the nature of the program.

What Are Restricted Member Firefighter Programs?

Restricted member firefighters are elected members of the fire company who are approved and authorized by the authority having jurisdiction (“AHJ”) to engage in volunteer firefighting activities. Restricted members (sometimes called Restricted Active Members or “RAMS”) exist in a distinct class of membership or as a subset of active membership within the bylaws of the fire company. Typically, membership in fire companies is limited to those who are 18 years of age and older. The obvious reason for this is because persons under the age of 18 are minors. To say it bluntly, persons under the age of 18 are deemed to be “children” in the eyes of the law. The term “restricted” is – or should be – utilized in the classification of the program to designate that this group of firefighters are active members of the fire company, but have restrictions in place that limit their participation as opposed to active firefighters in the fire department who are over the age of 18. Suggestions as to some of the types of limitations or “restrictions” that should be imposed by the fire company and the AHJ are set forth at the end of this article.

What Are the Greatest Benefits in Having a Restricted Member Firefighter Program?

The two most obvious benefits of a restricted member program are that: 1. participants in the program are deemed to be active “firefighters” and covered by the Volunteer Firefighters’ Benefit Law (“VFBL”), and, 2. because they are covered by VFBL, restricted member firefighters may participate in New York State sponsored fire service training with parental approval.

What Are the Biggest Risks?

When a fire company opens its membership ranks to individuals under the age of 18, it opens itself up to draw upon a brand-new pool of enthusiastic, young, and hopefully talented individuals to forge into firefighters. Because this talent pool is comprised of minors (aka “children”), the establishment of a restricted member program also opens the company, and more significantly, the AHJ, to a whole new host of legal ramifications in overseeing such a program. As a general principle, more needs to be done to ensure the safety of children than adults. Safety involves not only training and scene safety, but also protecting minors in their interactions with adults, keeping them protected from undue influences, and assuring that their experiences in the fire service are tempered by the legal limitations of their youth and their levels of maturity.

There are also the obvious risks for adult members of the fire company who fail to conduct themselves appropriately in the presence of minors. Untoward conduct towards restricted members by adult members could potentially result in liability to the company, the AHJ, and the individual member if the conduct is harassing or otherwise actionable. In addition there are state criminal statutes the least of which being “endangering the welfare of a child“ and “unlawfully dealing with a child” that could potentially create criminal liability in instances of egregious conduct between an adult and restricted member.1 It is imperative that the AHJ and the fire company are confident that all of the members of the fire department understand that the addition of restricted members to the active membership rolls demands a level of maturity that older members may fail to appreciate or understand.

Where in the Law Does it State that Minors 16 and older can be Volunteer Firefighters?

There is no statute on the books that allows minors to be volunteer firefighters. Rather, the ability of a fire company to open active membership to persons as young a 16 years-old is found in various opinions of the New York State Comptroller,2 and can be gleaned from the blanket restriction on allowing anyone under the age of 16 to take part in activities that are “dangerous or injurious to the life, limb, health or morals.”3 The Comptroller’s opinions have served as the basis for allowing fire companies to admit into (restricted) active membership persons ages 16 and 17. There is no requirement that a restricted member program be extended to 16 year-olds; it could be extended to 17 year-olds only. However, in no instance do the Opinions of the State Comptroller authorize (restricted) membership in a fire company for anyone under the age of 16.

Do Child Labor Laws Apply?

Because restricted members ages 16 and 17 are children, it is reasonable to expect that New York’s child labor laws would apply and thus limit the activities of restricted member firefighters just as they limit the activities of that same age group in both private and public sector employment (for example, Labor Law Section 133 prohibits minors from any occupation involving: “construction work”; the operation of circular saws; or the operation of power-driven hoisting apparatus).4 Many of the prohibitions in New York child labor laws prohibit the hours of work or the types of activity that are commonplace in the volunteer fire service, such as operating saws and climbing ladders.

Various written opinions of the New York State Attorney General have expressed the opinion that the child labor law limitations found in New York State Law do not apply to volunteer firefighters between the ages of 16 and 18.5 However, although many of the child labor laws do not apply to volunteer firefighters who are minors, those minors to whom the compulsory attendance provisions of the Education Law apply are not allowed to leave school to respond to alarms. Consequently, high-school-aged restricted members are not allowed to leave school to run daytime calls.

What About OSHA and PESH and Other Laws that Protect Firefighters?

Although the rationale for rendering child labor laws inapplicable to restricted members is based upon the premise that such personnel are not “employees” of the fire department for child labor law purposes, it is important to remember that restricted members are employees of the AHJ for purposes of OSHA and PESH rules and regulations. Consequently, all laws and OSHA regulations that are enforced by New York State Department of Labor Public Employee Safety and Health apply to restricted member firefighters. These include the provision of appropriate protective equipment, respiratory protection compliance and appropriate health evaluation, among others.

What Types of Restrictions on Activity Should be Implemented in a Restricted Member Program?

The simple answer is: whatever is necessary to ensure the safety and well-being of the minor member. Certain restrictions as to the qualifications for “restricted membership” in the fire company should be in place in the fire company’s bylaws. However, a detailed listing of restrictions ought to be reviewed and approved by the AHJ in addition to whatever is stated in the fire company bylaws. In practicality, it is easier to have one list of restrictions, approved by the AHJ and included as an attachment or exhibit to the bylaws of the fire company. This will allow for uniformity and consistency in ensuring that the restrictions are imposed and enforced. Some of the areas that should be addressed are:

  • Limitations on the restricted member’s duties at fire scenes (e.g. no interior firefighting – ever);
  • Limitation on the restricted member’s access to the fire station and restrictions on how late a restricted member may be at the fire station for drills, meetings and social events;
  • Limitations on the types of training the restricted member may participate in;
  • Limitations on the restricted member responding to calls during the day and on school nights;
  • The restricted member’s continued attendance in high school and obtaining passing grades; and
  • Limitations on voting on fire company matters and continued probationary status while a restricted member.

The foregoing are just a sampling of the areas and the topics of consideration in establishing and maintaining a restricted member firefighter program. The AHJ and the fire company should prepare a very thoughtful and extensive listing of activities and conduct that will be permitted and which may be grounds for dismissing the restricted active member.

If a fire department is interested in establishing a restricted member firefighter program, it should make the effort to consider all of the variables that go into administering an effective program beyond simply letting the “kids” train like firefighters. Collaboration between the fire company membership, leadership, the chiefs, line officers, and the AHJ is critical to establishing and maintaining a successful program that accomplishes the dual objectives of introducing youths to the volunteer fire service while keeping them safe in all facets of the program.

Finally, FASNY’s scholarship and college tuition assistance programs should be utilized as a recruitment and retention tool for young firefighters. The two programs are:

  • The Gerard J. Buckenmeyer FASNY Volunteer Scholarship is awarded annually to 25 college-bound high school seniors. Each scholarship provides a one-time $1,500 award for college-related expenses. More information is available at: fasny.com/awards/scholarship
  • The FASNY Help Tuition Reimbursement Program provides up to 100% tuition reimbursement to active volunteer firefighters who attend an accredited college or university located in New York State. More information is available at: fasny.com/resources/fasny-help-tuition-reimbursementprogram

Timothy C. Hannigan, Esq. serves as General Counsel to FASNY, and is a volunteer firefighter with the Elsmere Fire Company, Inc. in Delmar, New York. He can be reached at www.hannigan.law. Please note that the information contained herein does not establish an attorney-client relationship between the author and the reader. Matters addressed are for information purposes only and the reader should seek advice from competent local counsel in regard to acting on any matters addressed herein.

1 Penal Law Article 260.
2 69 Op St Compt 40 (1969), 16 Op St Compt 130 (1960), 19 Op State
Compt 158 (1963), 23 Op State Compt 76 (1967).
3 Arts and Cultural Affairs Law § 35.07.
4 Labor Law §133 (2).
5 1945 Atty. Gen Op 242 (1945), 1977 Atty. Gen Op 149 (1977), 1984
Atty. Gen Op 164 (1984), 1985 Atty. Gen 136 (1985).