It has been 6+ weeks since the new legislation authorizing LOSAP sponsors to award points during the COVID-19 pandemic was enacted. We thought it would be helpful to answer a few "frequently asked questions" we have received about the legislation.
As with any interpretation of statute, we suggest reviewing everything with your attorney before taking any action. If one of these questions has been on your mind, print this post and bring it to your attorney for his/her response.
What is the maximum period that points can be awarded?
The new statute ties the awarding of points to Executive Order 202 of 2020. For those of you not following the technical details of all of the Governor's Orders, he issued Executive Order 202 on March 7, 2020 in which he declared a State disaster emergency. The Order is in effect until September 7, 2020, or for six (6) months. Subsequent Executive Orders have been issued - 55 in all as of August 5, 2020 - that continue and/or modify the original Order. Therefore, for the purposes of this new legislation, the current time period cannot be any more than the six-month period from March 7, 2020 to September 7, 2020.
However, the intention of the statute is to allow a LOSAP sponsor to give points for a period of time in which activities were cancelled or certain volunteers were told not to respond to emergencies. Therefore, the period in which the points are granted should be based on when the fire department cancelled activities or formally required vulnerable volunteers to stay home and not respond to calls, which is likely a period of time that started after March 7, 2020 and may end before September 7, 2020.
What if the pandemic extends beyond September 7, 2020?
The key will be if the Governor extends the effective date of the original Order 202 beyond September 7, 2020 or issues a new Executive Order. If the original Order is extended, then points could continue to be awarded after September 7, 2020. If he issues a new Order, then it would appear points cannot be awarded for that period. The statute specifically states that the points are tied to Executive Order 202. This is a perfect example where consultation with your attorney will be valuable and necessary.
Do we have to award five (5) points per month?
No - you can choose how many points to award per month, just not to exceed five (5) per month.
Does the number of points per month have to be a whole number?
There is nothing in the statute that would require the number of points per month to be a whole number. If your firehouse was closed for two (2) months and the sponsor would like to award each active member a total of five (5) points, then the sponsor would resolve to award 2.5 points per month.
Can we award a different number of points per month, such as three for April, five for May and four for June?
No and yes. The statute appears to require a sponsor to award the same number of points per month, pro-rated for periods of less than one month. However, as long as the per-month amount does not exceed five (5) you can certainly back into the number of monthly points that would essentially accomplish your goal.
In this example the sponsor desires to award a total of 12 points for the three-month period. Therefore, they would simply award four points per month.
How do we handle a volunteer that joined during the pandemic?
Although this is not our area of expertise, we would be surprised if this was a significant issue. Our understanding is that a new member must be approved at a fire department meeting then go through an additional approval process by the municipal board. Since many of these meetings were cancelled or only essential functions were handled at meetings, we assume there weren't many new volunteers activated during the pandemic. But if there were, the statute is silent on this. It would seem reasonable that a sponsor would only award points during the period in which the individual was a member. Our suggestion is that the sponsor review everyone who is pushed over the 50-point threshold in 2020 as a result of the COVID points to determine if this specific question is a problem and then address it at that point.
How do we handle a volunteer who was on leave prior to the pandemic?
This is another scenario that is not addressed in the statute. However, a volunteer on a leave is not responding to calls or attending drills or meetings. With that in mind, it would seem reasonable that a volunteer on leave should not be awarded the additional points since it replaces points for cancelled activities that the volunteer on leave was not going to attend anyway. We can't say it enough - double check with your attorney before coming to a final decision.
Can we select which volunteers can get the points or award different points to different volunteers?
The statute seems to indicate that all active volunteer firefighters are to be awarded the same number of points per month. Every active volunteer should be treated the same to avoid any discrimination issues.
Can the fire department determine the points to be awarded?
The municipal sponsor is the entity that approves the number of points to be awarded. Therefore, the fire district, village, town or city would make the ultimate decision. The fire department certainly can, and probably should, make a recommendation to the municipality, but ultimately the municipality makes the final decision.
Why is the deadline April 30, 2021?
The fire department is responsible for tracking the points during 2020 and reporting them to the municipal sponsor by March 31, 2021. In theory, a municipality may not know how the pandemic impacted the volunteers and their ability to earn 50 points until March 31, 2021. Therefore, they could take action in April 2021 if necessary.
What category do we award the points in?
The COVID points are in addition to any points earned by the volunteers. So these points would be a separate category (COVID category) or just added to the points earned during 2020.
Do we have to amend the point system document?
It doesn't seem necessary to amend the point system for a one-time event such as this. In reality, the COVID points is not a point system category but extra points that are being awarded for 2020. It would seem that the municipal resolution should be sufficient for this one-time event. That said, a sponsor could certainly amend the point system document.
Do we have to disclose a cost in the resolution?
The statute does not require that a cost be disclosed. Keep in mind, the purpose of the COVID points are to make up for points that the volunteers would have likely earned anyway. Therefore, these points would not create an additional cost, but keep in line with what has been experienced in the past. There is some concern that the COVID points could allow some firefighters to earn the points that in a typical year would not, but that is very hard to quantify.
We hope these helped. Again, we suggest confirming questions with your attorney. If we missed a question, please leave a comment!
Sharing my thoughts and insights on LOSAP, and occasionally other topics.