H. B. 2397
(By Delegates Collins, Williams and Kuhn)
[Introduced February 8, 1995; referred to the
Committee on Industry and Labor then the
Judiciary.]
A BILL to amend and reenact section seventeen, article five,
chapter twenty-one; and sections one and four, article
three-a, chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating
to expanding the term emergency so that voluntary fire
department personnel are not fired or otherwise
discriminated against for responding to calls that are not
presently included in the term emergency.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article five, chapter twenty-one;
and sections one and four, article three-a, chapter twenty-nine
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
§21-5-17. Employers prohibited from discharging employees for
time lost as volunteer firemen.
No employer may terminate an employee who is a member of a
volunteer fire department and who, in the line of emergency duty
as a volunteer fireman, responds to an emergency call prior to
the time he is due to report for work and which emergency results
in a loss of time from his employment.
Any time lost from employment as provided in this section
may be charged against the employee's regular pay.
At the request of an employer, any employee losing time as
provided herein shall supply his employer with a statement from
the chief of the volunteer fire department stating that the
employee responded to an emergency call and the time thereof.
As used in this section, "emergency" shall mean going to,
attending to or coming from (1) an actual a fire call, to prevent
the imminent loss of life or property or (2) a hazardous or toxic
materials spill and cleanup, or (3) any other situtation that
calls for immediate attention and in which a fire department
could assist. The term "employer" includes any individual,
partnership, association, corporation, business trust or any
person or group of persons acting directly or indirectly in the
interest of an employer in relation to any employee.
Any employer who willfully and knowingly violates the
provisions of this section shall be required to reinstate such
employee to his former position and shall be required to pay such
employee all lost wages and benefits for the period between
termination and reinstatement. Any action to enforce the
provisions of this section shall be commenced within a period of
one year after the date of violation and such action shall be
commenced in the circuit court of the county wherein the place of
employment is located.
ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.
§29-3A-1. Authority of fire officers in charge of fire,
service call or other emergency.
While any fire department recognized or approved by the West
Virginia state fire commission is responding to, operating at or
returning from a fire, fire hazard, service call or other
emergency, the fire chief, any other elected or appointed fire
line officer, or any member serving in the capacity of appointed
fire line officer in charge, except on industrial property where
trained industrial fire fighting personnel are present, shall
have the authority:
(1) Of controlling and directing fire fighting and fire
control activities at such scene;
(2) To order any person or persons to leave any building or
place in the vicinity of such scene for the purpose of protecting
such persons from injury;
(3) To blockade any public highway, street or private
right-of-way temporarily while at such scene;
(4) To enter the building, structure, enclosure or other
property of any person or persons at any time of the day or
night, without liability, while operating at such scene;
(5) To enter any building, including private dwellings, or
upon any premises where a fire is in progress an emergency
exists, or where there is reasonable cause to believe a fire is
in progress an emergency exists, for the purpose of extinguishing
the fire eliminating the emergency;
(6) To enter any building, including private dwellings, or
premises near the scene of the fire emergency for the purpose of
protecting the building or premises or for the purpose of
extinguishing the fire eliminating the emergency which is in
progress in another building or premises;
(7) To inspect for preplanning, all buildings, structures or
other places in their fire district, excepting, however, the
interior of a private dwelling, with the consent of the owner or
occupant, where any combustible materials, including waste paper, rags, shavings, waste, leather, rubber, crates, boxes, barrels,
rubbish or other combustible material that is or may become
dangerous as a fire menace to such building or buildings,
structure or other places has been allowed to accumulate or where
such chief or his designated representative has reason to believe
that such material of a combustible nature has accumulated or is
liable to be accumulated;
(8) To direct the removal or destroying of any fence, house,
motor vehicle or other thing which may reasonably be determined
to be necessary to be pulled down, or destroyed, or removed to
prevent the further spread of the fire or hazardous condition;
(9) To request and be supplied with additional materials
such as sand, treatments, chemicals, etc., and special equipment
when dealing with an accident on a public highway or railroad
right-of-way when it is deemed a necessity to prevent the further
spread of the fire or hazardous condition, the cost of which to
be borne by the owner of the instrumentality which caused the
fire or hazardous condition; and
(10) To order disengagement or discouplement of any convoy,
caravan or train of vehicles, craft or railway cars if deemed a
necessity in the interest of safety of persons or property.
§29-3A-4. Person attacking or hindering or obstructing fire fighter or emergency equipment; penalties.
It shall be unlawful, while any fire department or company
or fire fighter is in the process of answering an alarm of fire
or extinguishing a fire or returning to station responding to,
operating at or returning from a fire, fire hazard, service call
or other emergency, for any person to:
(1) Attack any fire fighter or fire-fighting equipment or
emergency vehicles with any firearms, knives, fire bombs or any
object endangering life or property; or
(2) Intentionally hinder any fire fighter in the performance
of his duties or intentionally obstruct any fire-fighting
equipment or emergency vehicle.
Any person violating the provisions of this section is
guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than one nor more than
ten years, or, in the discretion of the court, be confined in the
county jail not more than one year or fined not more than five
hundred dollars, or both fined and imprisoned.
Any person willfully violating any of the provisions of
section one or three of this article is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars: Provided, That nothing in this article shall be construed to prevent
law-enforcement officials from controlling traffic and otherwise
maintaining order at the scene of a fire.
NOTE: The purpose of this bill is to expand the term
emergency so that voluntary fire department personnel are not
fired or otherwise discriminated against for responding to calls
that are not presently included in the term emergency.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.