Today, August 20, 2021, Governor Cuomo signed bill S1091a / A2239a into law.
Chapter 400 of the Laws of 2021 extend the maximum years of service credit that can be earned in a volunteer firefighter LOSAP from 40 years to 50 years.
The bill amends both Section 218 (defined contribution plans) and Section 219 (defined benefit plans) to include the same language, which is as follows:
The governing board of a political subdivision may extend the maximum number of years of service for which a participant may receive a contribution for up to an additional ten years, to a maximum of fifty years, and such increases in the number of years may be added in multiple increments or in a single action, pursuant to the adoption of the required resolution or resolutions of the governing board, receiving the affirmative vote of at least sixty percent of the governing board of the political subdivision, and the approval of any mandatory referendum or referenda authorizing the extension of benefits under the program by eligible voters within such political subdivision.
Interestingly, the language states that a political subdivision can extend the maximum years of service for which a participant may receive a contribution an additional ten years. That wording is more applicable to a defined contribution plan, where a participant receives a contribution into an account for each year of 50 points earned, rather than a defined benefit plan where a participant earns a monthly benefit instead.
However, the intention seems clear - that a LOSAP can be amended to extend the maximum years of service credit from 40 to 50 years, and that such extension requires voter approval at a mandatory referendum.
Yesterday, Monday August 9th, bill A2239a was delivered to the Governor. This bill would extend the maximum years of service credit that can be earned in a volunteer firefighter service award program from 40 to 50 years. Therefore, this also extends the number of years in which a participating firefighter can accrue benefits by another 10 years.
The timetable for signature or veto by the Governor is different depending on when a bill is delivered. If a bill is delivered while the Legislature is in session, the Governor has 10 days (excluding Sundays) to sign the bill into law, or veto it. If no action is taken, then the bill automatically becomes law.
However, if the Legislature is not in session, which is the current situation, the Governor has 30 days in which to sign the bill into law. If no action is taken, then the bill is considered vetoed. This inaction is referred to as a "pocket veto".
In the recent past, it appears the Governor has taken action within the 10-day window, even when it isn't required. We will monitor the bill and update our blog when action is taken.
Obviously, the Governor's resignation will impact the timing of the actions taken in some way. Again, we will continue to monitor and update our blog when action is taken.
On June 24, 2021, Governor Cuomo signed Executive Order 210, which stated in part:
WHEREAS, it has been determined that Executive Orders 202 through 202.111 and Executive Orders 205 through 205.3 are no longer necessary.
Readers will likely recall that legislation that was adopted in 2020 to allow LOSAP sponsors to credit up to five (5) points per month for restrictions and cancellations having to do with the COVID-19 pandemic. This legislation, and the points that could be awarded, were tied to the state disaster emergency declared pursuant to executive order 202. Here is the applicable section of that statute:
(p) For purposes of determining total points earned for a calendar year in which a state disaster emergency, as defined in section twenty of the executive law, has been declared pursuant to executive order number two hundred two of two thousand twenty, as amended, to address the outbreak of novel coronavirus, COVID-19, an active volunteer firefighter service award program may provide for the crediting of up to five additional points per month, prorated for periods of less than one month, to each active volunteer firefighter for each month that special emergency response rules were in place restricting firefighter responses to emergency responses and/or restricting the holding of activities for which points could be earned due to guidelines related to the state disaster emergency. A political subdivision electing to provide the additional points authorized under this subdivision shall adopt a resolution by April thirtieth, two thousand twenty-one determining the number of additional points to be credited per month, provided that any additional points credited pursuant to this subdivision shall be in addition to any other points earned pursuant to this section during the state disaster emergency.
Now that Executive Order 202 has been rescinded, the window of opportunity to award up to five (5) points per month during the COVID-19 pandemic has closed. It would appear that no COVID-related points can be awarded after June 24, 2021.
We observe that since the vaccine became widely available, most fire departments began to again operating at/near pre-pandemic levels. Therefore, it seems less likely that additional points will be needed for 2021.
However we obviously don't know what will happen in the future, especially as we see new strains of the virus and the long-term effectiveness of the vaccine is put to the test. Since Executive Order 202 has now expired, if we enter a new state of emergency at a later date, and fire departments are forced to revert back to restricted activities, it would appear that a new bill may have to be introduced to allow LOSAP sponsors to grant additional points. All readers are strongly encouraged to review this with your local attorney for guidance.
We were asked if a person on a leave of absence from the fire department can earn points for attending online meetings and trainings.
First, we cannot give legal advice, and this post is not intended to be legal advice. If you have a similar question and this blog post is helpful, we suggest sharing it with your attorney and getting his/her counsel before formalizing any course of action.
Before we address this particular question, we think it would be helpful to read a post we wrote about eligibility to participate in LOSAP. You can read that here: https://www.fireflyadmin.com/blog/eligibility-to-participate-in-losap
To summarize that post, it would appear that only active volunteer firefighters who are subject to a call to duty when the department is activated for an alarm are eligible to earn points. In our view, we also believe that matches the spirit and intent of the LOSAP – to recruit, retain, and reward individuals that are trained and responding to emergencies.
The next point to discuss is the purpose of a leave of absence. Being an active volunteer firefighter comes with certain responsibilities and requirements as stipulated in the by-laws or similar document. Simply put, we assume the purpose of requesting a leave of absence is to be temporarily relieved of those responsibilities and requirements. Therefore, someone requesting to be placed on a leave of absence is effectively requesting to remove him/herself from participating in any activities that an active volunteer firefighter is required to participate in.
Looking at it this way, this question then becomes a by-law enforcement issue rather than a LOSAP issue. Again, we are assuming someone applies for a leave of absence because they cannot fulfill all the duties required of an active volunteer firefighter, including training and meetings. So to us, this is an issue of properly enforcing by-laws. At a minimum, the by-laws should be reviewed to determine what a firefighter is permitted to do while on a leave of absence.
Another factor to consider is VFBL coverage, and how a leave of absence impacts coverage. Although many don’t like to think about the possibility of getting hurt, accidents happen and injuries can occur. We are not experts in VFBL coverage, but it is our understanding that individuals on a leave of absence from the fire department are no longer covered by VFBL. For that reason alone, these individuals should not be permitted to participate in any activities during the leave of absence.
With these two points in mind, a question about whether-or-not a volunteer can earn points while on a leave of absence seems almost moot. A volunteer on a leave of absence should not be participating in activities, so therefore points cannot be earned!
But with the advent of online training courses and online department meetings, an individual on leave could conceivably participate in those activities. We can think of a few legitimate scenarios, such as someone on a school leave or someone on an extended medical leave due to a non-line-of-duty injury. These individuals could easily participate in a meeting via zoom. We don't have the expertise in VFBL coverage to know if coverage extends to participating in an online meeting or training. While it would seem that an online meeting/training would have significantly less injury risk than a meeting/training held at the firehouse, the online activity is still a fire department event. You should confirm coverage for online meetings & trainings with your attorney or VFBL carrier.
Ignoring the VFBL issue for now, presumably an individual on a leave of absence as an active volunteer firefighter retains some rights and privileges associated with the social side of membership in a department; however, a social-only member is not eligible to earn points. Again, by extension, it would seem logical that an individual on a leave of absence would not be eligible to earn points for attending a meeting by zoom since the individual is temporarily not an active volunteer firefighter.
Although we would assume a social-only member would not be taking online training courses, it would stand to reason the same logic would apply to an individual on a leave of absence – that person should likely not be allowed to participate in the online training. But that is a policy that must be controlled locally.
If you or your attorney have any questions, comments, or disagreements with our thought process, please share in the comments below! Again, we suggest forwarding this to your legal counsel and VFBL carrier for additional guidance.
The New York State Legislature passed another bill on June 3, 2021 that would amend Article 11-A of the New York State General Municipal Law, provided the bill is signed into law by Governor Cuomo.
This bill is S1210 / A6401 and was first introduced in 2020 during the COVID-19 pandemic. A second bill was also introduced at that time, which allowed LOSAP sponsors to award up to five (5) points per month during the pandemic. Most readers know this second bill became law in 2020.
Bill S1210 / A6401 was also meant to address the staffing challenge fire departments were facing during the pandemic. Many departments were limiting certain at-risk volunteers from responding to calls. Although this was for the safety of those volunteers, these limitations made it more difficult to earn points under the department responses category. As a reminder, the current statute provides that 25 points are earned by a volunteer that attends a minimum number of the fire department’s total calls for the year. For departments that also have a rescue/ambulance unit, an additional 25 points could be earned for attending a minimum percentage of those calls as well. If a volunteer is restricted from attending some calls, it limits the opportunity to respond to the minimum to earn the 25 points. Additionally, the department responses category is unique from other categories since it is an all-or-nothing category – either a volunteer responds to the minimum number and earns 25 points or does not and earns 0 points.
What makes this bill different from the one that became law is that it is not specifically tied to the COVID-19 pandemic – it is a permanent change to the statute that gives a LOSAP sponsor another option for awarding points for department responses.
Before we give you the text of the new proposed statute, let’s first review the summary and justification for the bill:
The Summary and Justification make it fairly clear that the intent is to allow a sponsor to credit the points for department responses on an individual basis, rather than for the entire department’s number of calls. In the view of the legislators that sponsored the bill, this creates “a more equitable and efficient system.”
Since our expertise is not in fire department operations, we won’t discuss how a specific department operates and if an emergency response protocol is efficient or not. We are certain there are many factors to be considered.
This legislation will be helpful for larger departments that have multiple fire companies that are dispatched individually. The actual point system category in the law is titled “participation in department responses”, but then the chart detailing the percentage requirement references “volunteer fire company.” Since department and company can sometimes be used interchangeably, it wasn’t 100% clear if points should (or could) be broken out by company or tracked for the entire department. This new legislation would make it clear that a LOSAP sponsor could calculate the minimum percentage based on each company’s number of responses.
Another scenario where this could be helpful is for departments that respond to a lot of automatic alarms that don’t require the entire department to be activated. Many departments call these “chief’s investigations” or something similar because they do not activate the entire membership, but rather dispatch a chief to investigate the automatic alarm. If the chief determines that the situation requires the activation of the full department, then that step is taken. Even under the current construct of the law, we believe an argument could be made to exclude chief’s investigations as a “department response” since the entire department wasn’t activated. However, this new legislation would appear to make it clear that this can be done. (A second discussion about how to award the individuals performing the chief’s investigations with points is a topic for another time.)
In general, we question whether this new system will actually be more equitable and if it really will create efficiencies in the recordkeeping process.
For a typical department where all active members (regardless of fire company membership) are dispatched for an alarm, the ability to create sub-groups or to assign certain calls to certain volunteers could create inequity and administrative complexities – the opposite of the stated intent of the new law. An obvious example is when chiefs are responsible for responding to all calls, whereas the fire police are only needed for a fraction of the calls. Whatever that fraction is, members of the fire police will be able to earn the same 25 points as the chiefs by responding to fewer calls.
Under the existing point system rules, every active volunteer firefighter of the fire department is expected to respond to the same number of calls in order to earn the same number of points (i.e., 25). The same for the other event-based categories: each firefighter receives the same number of points based on the specific event (points for officers being the one variant). This new statute would allow some firefighters to earn 25 points for responding to fewer calls than others. This seems contrary to the spirit of the rest of the point system.
There would be further complications about how to handle people changing groups mid-year, or even joining or resigning from the fire department mid-year. We can easily see this resulting in an individual-by-individual call requirement to earn the 25 points, as seems to be indicated in the Summary and Justification. This would likely be an administrative challenge for any department – large or small.
If adopted into law, this change to how points are awarded for department responses would be optional. Great care should be taken before implementing it, and the LOSAP sponsor should review it with its legal counsel and LOSAP administrator.
The full text of the new law is below. If you have thoughts or comments, please share for everyone to read!