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Now that Executive Order 202 has been rescinded, the window of opportunity to award up to five (5) points per month during the COVID-19 pandemic has closed.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.
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.