Are unpaid special-education student workers covered by Maryland's Workers' Compensation Act?

Plain-English summary

In 1989, a member of the Maryland House of Delegates asked the Attorney General about a Cecil County program that placed handicapped students with private employers in unpaid work positions, as part of the students' individualized education plans combining schoolwork with job training. The delegate wanted to know whether these students were covered by the Workers' Compensation Act if they got hurt on the job, whether the employer and student could voluntarily opt into coverage even if the Act did not automatically apply, and what that meant for the employer's liability if a student was injured through the employer's negligence. The opinion concluded the students were not covered. The Workers' Compensation Act's core definition of "employee" requires a "contract of hire," meaning the employer owes the worker wages, and these student placements involved no compensation at all. The opinion also concluded the employer and student could not simply file a joint election to bring themselves within the Act's coverage, because that election procedure only existed for people who already had a genuine paid employer-employee relationship but happened to fall outside the Act's coverage for some other reason, not for people who were never employees to begin with. The upshot, the opinion found, is that because workers' compensation never applied, a student hurt on the job through an employer's negligence kept an ordinary right to sue the employer in court, since workers' compensation's usual bargain (guaranteed no-fault benefits in exchange for giving up a lawsuit) never came into play.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The opinion's own text, as later annotated by the Attorney General's office, records that the State Workers' Compensation Act was later recodified as Title 9 of the Labor and Employment Article.

Common questions

In 1989, were unpaid special-education student workers covered by Maryland's Workers' Compensation Act?
No, according to this opinion. It concluded the students were not "employees" under the Act because they received no wages or other compensation, and the Act's core coverage definition depends on a paid "contract of hire."

Could the employer and student voluntarily agree to be covered anyway?
No. The opinion concluded the Act's joint-election procedure, Article 101, §31, was available only to people who already had a genuine employer-employee relationship but were excluded from automatic coverage for some other reason, not to people who were never "employees" in the first place because they were unpaid.

If a student got hurt on the job, could they sue the employer for negligence?
Yes, per the opinion. Because workers' compensation coverage never applied, the opinion concluded the student retained an ordinary tort right to sue the employer for negligence, since workers' compensation's usual exclusive-remedy trade-off only replaces a lawsuit where the Act's coverage actually attached in the first place.

Did the General Assembly ever specifically address unpaid volunteers under the Act?
Yes, for certain other categories. The opinion noted the legislature had expressly extended coverage to specific groups of volunteers elsewhere in the statute, complete with rules for calculating their compensation base, which the opinion read as showing that unpaid workers are excluded from the Act unless the legislature says otherwise for that specific group.

Background and statutory framework

The Cecil County program placed handicapped students with private employers in unpaid positions doing the employer's typical work, as an element of the students' individualized education plans under Education Article §8-404 and COMAR 13A.05.01.06D, which combine classroom education with work experience to prepare handicapped students for eventual paid employment. Neither the students nor the schools received compensation for the work.

The Workers' Compensation Act, Article 101, §21(b), covers "employees," defined most broadly at §21(b)(1) as anyone "in the service of an employer under any contract of hire or apprenticeship, express or implied." The opinion quoted its own prior guidance that "the natural import of the language 'contract of hire' describes the situation whereby a relationship exists between an employer and one rendering a service to an employer, in which the employer is obligated to provide wages or remuneration to the one rendering service," and cited Moats v. State, which held the Act did not cover an inmate of a state institution for the mentally retarded who performed uncompensated work there. Because the Act's compensation mechanism is built around the injured worker's "actual weekly wages" under §36, the opinion reasoned that when the General Assembly wanted certain volunteers covered anyway, it said so expressly and separately spelled out how to calculate their compensation base, citing §§34(b), 35A(b), and 35B(b); the existence of these specific carve-outs, following Moats and Lockerman v. Prince George's County, gave rise to a strong inference that other unpaid workers, including the students at issue, are not covered absent similar express legislative action.

On the joint-election question, the opinion examined Article 101, §31, which lets "any employer, his employee or employees engaged in works not within the meaning of this article" voluntarily opt into Act coverage by joint election filed with the Workers' Compensation Commission, a provision that traced back to Chapter 800, Laws of Maryland 1914, and was reenacted without its original "extra-hazardous" qualifier by Chapter 119, Laws of Maryland 1971. Reviewing the purpose of §31 in Keeney v. Beasman and the pattern of cases actually invoking it, General Electric Co. v. United States, Apitsch v. Patapsco & Back Rivers R.R., and Cox v. Sandler's Inc., the opinion found that every one of those cases involved genuine "employees" who would have been covered by the Act but for some specific statutory exclusion (such as the type of work being excluded from coverage), not people who lacked an employer-employee relationship altogether. Since the opinion had already concluded the unpaid students were not "employees" for the same reason (no wages), it concluded they likewise could not become "employees" for purposes of a §31 election.

Finally, on liability, the opinion noted Article 101, §15 makes workers' compensation the "exclusive" remedy for a workplace injury, barring an ordinary negligence lawsuit against the employer, citing Knoche v. Cox. But because the students here fell outside the Act's coverage entirely and could not fix that through a §31 election, the opinion concluded, citing Tilghman Co. v. Conway, that a student injured through an employer's negligence retained a normal tort right of action against the employer, since the exclusive-remedy bar only displaces a lawsuit where the Act's no-fault coverage actually applies in exchange.

Citations and references

Statutes:

• Article 101, §21(b) and §21(b)(1), the Workers' Compensation Act's core definition of "employee" requiring a "contract of hire"
• Article 101, §21(a)(7), excluding certain apprentices, trainees, and retrainees from a separate coverage category
• Article 101, §36, basing compensation on the employee's actual weekly wages
• Article 101, §§34(b), 35A(b), and 35B(b), provisions expressly extending coverage to specific categories of volunteers with their own compensation-base rules
• Article 101, §31, the joint-election procedure letting an employer and employee opt into Act coverage for work otherwise outside the Act, originally enacted by Chapter 800, Laws of Maryland 1914, and reenacted without its "extra-hazardous" qualifier by Chapter 119, Laws of Maryland 1971
• Article 101, §15, making workers' compensation the exclusive remedy for a covered workplace injury
• Education Article §8-404 and COMAR 13A.05.01.06D, governing special education work-experience placements

Cases:

• Moats v. State, 215 Md. 49, 136 A.2d 757 (1957), holding the Act did not cover an uncompensated worker at a state institution
• Lockerman v. Prince George's County, 281 Md. 195, 377 A.2d 1177 (1977), on the inference that unpaid workers are excluded from coverage absent express legislative extension
• Norfolk & W. Ry. Co. v. Bondurant's Admn'r, 59 S.E. 1091, 1093 (Va. 1908), describing circumstances under which a master-servant relationship can arise from unpaid trainee service
• Keeney v. Beasman, 169 Md. 582, 590-91, 182 A. 566 (1936), on the purpose of the joint-election procedure for work otherwise excluded from the Act
• General Electric Co. v. United States, 603 F. Supp. 881 (D. Md. 1985), Apitsch v. Patapsco & Back Rivers R.R., 385 F. Supp. 495 (D. Md. 1974), and Cox v. Sandler's Inc., 209 Md. 193, 120 A.2d 674 (1956), examples of §31 elections involving genuine employees excluded from coverage by a specific statutory exception
• Knoche v. Cox, 282 Md. 447, 385 A.2d 1179 (1978), on workers' compensation as the exclusive remedy for a covered workplace injury
• Tilghman Co. v. Conway, 150 Md. 525, 537, 133 A. 593 (1926), on retaining a tort right of action when Act coverage never applied

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 320-324 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

WORKERS' COMPENSATION

Coverage - Unpaid Student Placements - Students Are Not Covered By
Act And May Not Gain Coverage Through Joint Election Procedure

                        February 3, 1989

The Honorable Ronald A. Gum
Maryland House of Delegates

You have requested our opinion concerning the applicability of the

Workers' Compensation Act to a program under which handicapped
students are placed with private employers in unpaid work positions.
Your specific questions are as follows:

   1. Are the students covered by the Workers' Compensation Act?

2. If not, may an employer and a student voluntarily bring

themselves within the coverage of the Act by filing a joint election
under Article 101, §31?

 3. Assuming that such an election is possible, would it immunize

the employer from civil liability for negligence if the student were
injured while at work?

   For the reasons stated below, we conclude as follows:

   1. The students are not covered by the Workers' Compensation

Act.

2. The joint election procedure of Article 101, §31 is not

available.

3. Because a joint election of Workers' Compensation Act

coverage would be ineffective, an employer would remain liable to a
student injured at work as a result of the employer's negligence.

                               I

                          Background

You describe the program in question as follows:

 Cecil County schools currently place handicapped students

with private employers in unpaid work positions. These
placements are part of the handicapped students' "individualized
education plan", a mandated program combining education and
work experience which prepares handicapped persons for
permanent employment. These students do work typical of the
employers' business, but neither they nor the schools receive
compensation.

We assume that this program is an element of the plan for special
educational services of the Cecil County Board of Education. See §8-
404 of the Education Article; COMAR 13A.05.01.06D.

                               II

                      Coverage of the Act

The Workers' Compensation Act covers "employees." Article 101,

§21(b) of the Maryland Code. The Act then enumerates several
categories of persons who are "employees," the broadest category of
which is "[e]very person, including a person under eighteen years of
age, ... in the service of an employer under any contract of hire or
apprenticeship, express or implied ...." §21(b)(1). As this office
pointed out some years ago: "The natural import of the language
'contract of hire' describes the situation whereby a relationship exists
between an employer and one rendering a service to an employer, in
which the employer is obligated to provide wages or remuneration to
the one rendering service." 61 Opinions of the Attorney General 662,
664 (1976). See Moats v. State, 215 Md. 49, 136 A.2d 757 (1957)
(Act inapplicable to inmate of State institution for the mentally retarded
who engaged in uncompensated work for the institution).

The compensation mechanism at the heart of the Act depends upon

the employee's "actual weekly wages." §36. For that reason, when
the General Assembly has determined to extend the scope of the Act to

certain volunteers, it has done so expressly and has provided ways of
determining the salary or wages upon which compensation is to be
based. See §§34(b), 35A(b) and 35B(b). Provisions of this kind "give
rise to the strong inference" that other persons who engage in unpaid
work, like the students in question here, are not covered. Moats v.
State, 215 Md. at 53. See also Lockerman v. Prince George's County,
281 Md. 195, 377 A.2d 1177 (1977).1

                                     III

                          Election of Coverage

 Article 101, §31 provides as follows: "Any employer, his

employee or employees engaged in works not within the meaning of
this article, may by their joint election, filed with the Commission,
accept the provision of this article, and such acceptances when
approved by the Commission, shall subject them to the provisions of
this article to all intents and purposes as if they had been originally
included in its terms."2 The form devised by the Workers'
Compensation Commission to implement §31 likewise speaks in terms
of the "employer" and the "employees."3

The purpose of this provision is to allow an employer and its

employees who are engaged in an activity excluded from the Act to opt
in voluntarily. See Keeney v. Beasman, 169 Md. 582, 590-91, 182 A.
566 (1936). We do not believe that §31 allows persons who do not

 1 From your letter, we gather that a student placed with an employer under this

program is not regarded as "an apprentice, trainee, or retrainee, who is regularly
employed ...." §21(a)(7). We need not address the applicability of the Act to unpaid
apprentices or trainees. Cf. Norfolk & W. Ry. Co. v. Bondurant's Admn'r, 59 S.E.
1091, 1093 (Va. 1908) (describing circumstances under which master-servant
relationship arises from service as unpaid trainee).
2 As originally enacted, §31 began as follows: "Any employer, his employee or
employees engaged in works not extra-hazardous within the meaning of this Act ...."
Chapter 800, Laws of Maryland 1914. In Chapter 119 of the Laws of Maryland
1971, the General Assembly reenacted the provision without the word "extra-
hazardous."
3 Form A-21 reads as follows: "We the undersigned employer and his
employees ... hereby jointly elect to accept and to be bound by the provisions of said
law as authorized in Section 31 thereof. This joint election is to be effective at any
and all times when the aforesaid relation of employee shall exist."

have an employer-employee relationship in the first place to obtain
coverage under the Act. Cases involving §31 (or its predecessor
provisions) all involve "employees" who would have been covered by
the Act but for a statutory exception. See General Electric Co. v.
United States, 603 F. Supp. 881 (D. Md. 1985); Apitsch v. Patapsco
& Back Rivers R.R., 385 F. Supp. 495 (D. Md. 1974); Cox v.
Sandler's Inc., 209 Md. 193, 120 A.2d 674 (1956); Keeney v.
Beasman, 169 Md. at 585.

In Part II above, we concluded that the students in question are not

"employees" subject to coverage under the Act because they are not
compensated. For the same reason, we believe that they are not
"employees" who could enter an election under §31. In this regard, we
point out that the absence of wages would present the same problem in
determining compensation as led the General Assembly to make special
provision for the unpaid volunteers that it wished to be covered under
the Act.

                              IV

                      Effect on Liability

Under §15 of the Act, the payment of workers' compensation is the

"exclusive" remedy for "an accidental personal injury sustained by the
employee arising out of and in the course of his employment without
regard to fault as a cause to such injury ...." In such circumstances,
the employee may not bring a negligence action against the employer.
E.g., Knoche v. Cox, 282 Md. 447, 385 A.2d 1179 (1978).

 Because we have concluded that the students are not now covered

by the Act and may not gain coverage under the joint election
procedure of §31, it follows that a student injured at the work place
retains a right of action in tort against the employer. Tilghman Co. v.
Conway, 150 Md. 525, 537, 133 A. 593 (1926).

                             V

                         Conclusion

In summary, it is our opinion that the Workers' Compensation Act

does not apply to students who are placed in unpaid work positions as
part of their educational program. Nor, under present law, may the
students gain coverage through voluntary election with an employer
under Article 101, §31. Legislation would be necessary, therefore, to
extend the Workers' Compensation Act to these students.

                                 J. Joseph Curran, Jr.
                                 Attorney General

                                 Jack Schwartz
                                 Chief Counsel
                                   Opinions and Advice

Editor's Note:

The State Workers' Compensation Act has been recodified as Title
9 of the Labor and Employment Article.