A few days after this post Governor Cuomo issued Executive Order 202.99, which extended the State Disaster Emergency through April 25, 2021.
This is important for LOSAP only if your fire department continues to operate under restricted call response protocols or are continuing to cancel events due to the pandemic. By extending the Emergency, it extends the timeline in which a LOSAP sponsor could award up to five (5) points per month to account for these cancellations and/or restrictions.
This pandemic has required us to change our behavior and routine in ways most of us have never experienced. Although not very significant, we would have never guessed that we'd be studying Executive Orders issued by the Governor in order to track how that might impact LOSAP. But here we are!
If you have any questions about the Executive Orders, or anything in this article, we recommend you forward a copy to your attorney before any action is taken. This article is not meant to be legal advice and you should seek it out before making any decisions.
The legislation that allows LOSAP sponsors to award up to five (5) points per month during the COVID-19 pandemic is tied to Executive Order 202. Therefore, it would seem the ability for sponsors to continue to award points for cancelled events or modified response protocols is contingent on the continued state disaster emergency.
Executive Order 202.92 clearly extended the emergency until February 26, 2021. You can view the order by clicking HERE. The applicable language is:
Therefore, pursuant to the authority vested in me by the Constitution of the State of New York and Section 28 of Article 2-B of the Executive Law, I hereby continue for thirty days the declaration of the State Disaster Emergency effective March 7, 2020, as set forth in Executive Order 202. This Executive order shall remain in effect through February 26, 2021.
Executive Order 202.96 then clearly seems to extend the emergency until March 28, 2021. You can view that order by clicking HERE. Again, the applicable language is:
Therefore, pursuant to the authority vested in me by the Constitution of the State of New York and Section 28 of Article 2-B of the Executive Law, I hereby continue for thirty days the declaration of the State Disaster Emergency effective March 7, 2020, as set forth in Executive Order 202. This Executive order shall remain in effect through March 28, 2021;
There have been two subsequent Orders - 202.97 (to read click HERE) and 202.98 (to read click HERE).
The language of these Orders are slightly different, and they do not specifically state that the Emergency is extended. Instead, they state the following (from 202.98):
...do hereby continue the suspensions and modifications of law, unless superseded, modified or otherwise expired, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until April 20, 2021.
So it would appear that the suspensions and modifications are extended, but the State Disaster Emergency was not specifically extended.
Since we still have a few more days until March 28, 2021, it is possible a new Order is forthcoming. For now, we can confidently say that a LOSAP sponsor should be able to award up to 5 points for January and February 2021, and at least 4 points for March, depending on the interpretation of a "month" and "less than one month" for March (since March 28th isn't exactly to the end of the month).
We will continue to update you as we know more and encourage you again to reach out to your attorney.
At this time, most Fire Departments are back to some variation of normal. However, the Governor did extend the State Disaster Emergency through February 26, 2021, which means it could be possible to award more points for cancelled events in 2021. We will continue to monitor and keep you updated.
On December 30, 2020, Governor Cuomo signed Executive Order 202.87, which effectively extended the State Disaster Emergency until January 29, 2021.
Therefore, this means that if fire departments continue to be in a situation where events are cancelled or firefighter responses are being limited, that points could be awarded for January 2021. Since the statute allows for 5 points per month, and pro-rated for periods of less than one month, as of now it would seem 4 points is the most that could be awarded for January. However, we expect a new Executive Order will be signed extending the State Disaster Emergency further.
An interesting note is that the governing municipal board must adopt the resolution by April 30, 2021. If the State Disaster Emergency is extended beyond April 30, 2021, we will likely need legislative relief regarding this deadline.
Yesterday, December 3, 2020, Governor Cuomo issued Executive Order 202.79, which continued the State Disaster Emergency through January 1, 2021.
Although this was expected, we now know officially that the time period for which points could be awarded in 2020 due to the COVID-19 pandemic is from March 7, 2020 to December 31, 2020. This also means we know the maximum number of points that can be awarded - 49.
The statute provides that 5 points can be awarded for each complete month. There were 9 complete months (April through December) plus 25 days in March (March 7 to March 31). Regardless of how you pro-rate for the partial month of March, you are likely to arrive at 4 plus a fractional number of points. Since a firefighter cannot earn a fractional point under a volunteer firefighter point system, there is no value in the additional fractional point. Therefore, the maximum points that could be awarded is 49.
That said, we continue to stress that the statue was designed to allow sponsors to grant points to volunteers for events that were cancelled or restrictions that were put in place that limited volunteer responses to emergencies. Therefore, we believe the number of points awarded should tie in some way to the cancelled activities or other restrictions. If the Fire Department cancelled 20 activities in 2020, then 49 points could be viewed as excessive. The challenge is dealing with calls, since that is based on an all-or-nothing 25 points (or possibly 50) based on attending a minimum percentage of the calls. Each sponsor has to consider this carefully with the fire department.
The next potential development we will be monitoring is if Executive Order 202 is further continued into 2021. If this occurs, then points could possibly be awarded for the COVID-19 pandemic in 2021 as well (again, depending on if activities are cancelled in 2021). The statute requires the resolution to be adopted by April 30, 2021, with that deadline imposed presumably for the 2020 calendar year (though it isn't expressly stated as such). Therefore, if fire departments are forced to cancel activities past April 30, 2021, we may need additional legislative action to create a new deadline for the 2021 calendar year. Otherwise, a practical solution could be for the sponsoring board to adopt the resolution on/before April 30, 2021 authorizing points to be awarded in 2021, but stipulate the actual number (not to exceed 5 per month) would be determined at a later date when it is known what actual activities were cancelled.
For the complete list of posts on this topic, please HERE.