Governor Hochul has signed bill S1210 / A6401 as Chapter 462 of the laws of 2021. Essentially, this new section of the General Municipal Law (GML) allows a LOSAP sponsor to adjust the department responses category of its point system to recognize that some groups of volunteers may be restricted from responding to certain types of calls. 

As a reminder, the department responses category provides that 25 points are earned by a volunteer who 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 can be earned for attending a minimum number of those calls as well. The minimum number is based on a percentage of the total calls for the year. For example, if a department has 400 calls during a year, a volunteer must respond to 40 (10%) in order to earn 25 points. The department responses category is unique from other categories since it is an all-or-nothing category – either a volunteer responds to at least the minimum number and earns 25 points or does not and earns zero (0) points.

If a volunteer is restricted from attending some calls, it limits the opportunity to respond to the minimum to earn the 25 points. For example, if a certain volunteer is restricted from responding to 50 of those 400 total calls, that volunteer would have to respond to 40 of the other 350 calls – a little more than 11%. The new law allows a LOSAP sponsor to change the requirement for this volunteer from 10% of 400 calls to 10% of 350 calls, or 35, to earn 25 points. 

If a LOSAP sponsor chooses to adjust its point system for this change, no referendum is required - only a resolution of the LOSAP sponsor governing board (at least 60% approval) is needed. However, it states that an adjustment to the point system must be in response to written emergency response protocols adopted by the sponsor. (The use of the term sponsor here is potentially problematic, as a village or town isn't likely setting emergency response protocols for a department.) The statute elaborates that these protocols may be related to a determination made by the district/department physician regarding the duties that a volunteer may be assigned. Since the word may is used, that implies it is not the only determining factor that could be used when a sponsor adopts these written emergency response protocols.

The adjustment would become effective the January 1st following the date the sponsoring board adopts the resolution, unless the written emergency response protocols were enacted as a result of a state disaster emergency. The wording of the amendment is not completely clear regarding this case – if the amendment can be made effective in the year the resolution is adopted by the board, or when the written emergency response protocols were adopted, or even when the state disaster emergency was declared. The takeaway is there is some flexibility allowed in this case.

It is important to be clear about how this amendment is implemented - it must be adopted by the municipal sponsor. A fire department that is interested in changing the point system must work with the sponsoring village, town, city or fire district to actually make the change.

Initially, this bill was meant to address the staffing challenge fire departments were facing during the COVID-19 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. However, this new law is not necessarily tied to the COVID-19 pandemic or any state disaster emergency (although it can be); it is a permanent change to the statute that can be adopted at any time.

We could see this new statute being helpful, or at least provide clarity in the following situations:

1. Implementation of duty-crews or stand-by crews. Some fire departments have moved to a system where a certain group of volunteers are on-call at the firehouse during a scheduled period of time. Calls during that period could be assigned only to that group and not the entire department. Unless an incident required the entire fire department to be activated, calls handled by the duty-crew would count towards their response percentage, and the other volunteers would not be hurt (from a percentage response standpoint) by being unable to respond to these calls.
   
   
2. 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 isn’t 100% clear if total number of responses should be (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 of calls a volunteer is required to respond to based on their company’s total number of responses.
   
   
3. 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. Again, we believe that under the old construct of the law an argument could be made to exclude chief’s investigations as a “department response” since the entire department was not 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, and is also potentially impacted by this new statute.)
   
   
4. For departments that may still have impacted department responses in early 2021 because of the COVID-19 pandemic, or where COVID-19 may end up impacting responses again later in 2021. 
   
   
5. For a volunteer who joins or resigns mid-year. Although we aren't certain this is a positive, it could allow a sponsor to require a volunteer to attend the percentage of the calls only during which he/she was an active member. Under the existing requirement, a volunteer must attend a number of calls that is based on a percentage of the total department calls for the entire year. This is difficult for those who join/resign mid-year or take a leave of absence. That doesn't appear to be the intention of the statute, but it would seem like a possible interpretation.

Of course, there could be others we aren’t thinking of - reply in the comments with your suggestions!

The full text of the new statute, including the Summary and Justification are printed at the conclusion of this post. 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, not necessarily based on the department’s total 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 and each department has its own unique set of parameters and challenges to work through.

Ultimately the volunteer fire service in New York is diverse, and a one-size-fits-most statute means those on the outside of “most” have a hard time getting the point system to work with the unique ways they must operate to protect their residents. This change may offer some departments the flexibility it needs to reward volunteers with LOSAP points in a manner that is consistent with the department’s operational requirements.

One thing is certain, this amendment is a departure from how the department responses category has always been administered. In the past, every active volunteer firefighter of a fire department was expected to respond to the same number of calls in order to earn the same number of points (i.e., 25). If this change is implemented, some volunteers will earn 25 points for responding to fewer calls than other volunteers.

We foresee additional administrative challenges:

• How to handle someone changing groups mid-year?
• How to handle someone who joins or resigns mid-year?
• Can the department accurately track what volunteers are responsible for what calls?
• Volunteers who did not earn the 25 points in their category could now potentially appeal the number of calls they were assigned during the year in addition to the number of calls they may have attended.
  
  

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.

Care should be taken before a sponsor decides to implement this change. Certainly, the sponsor should review this statute and any proposed changes it with its legal counsel.

​The full text of the new law follows: 

SUMMARY OF PROVISIONS:
Amends General Municipal Law by adding a new subparagraph (q) to address developments in how volunteer fire departments respond to emergencies by allowing programs to calculate percentages based on the total number of calls an individual was dispatched.
 
JUSTIFICATION:
The length of service award programs (LOSAP) are pension-like programs intended to help recruit, retain, and reward volunteer firefighters and ambulance workers for serving their communities. New York requires volunteers to earn 50 points in a given year to receive these benefits. One of the ways firefighters can earn points is by responding to emergency calls. However, since COVID, emergency precautions have been adopted to protect vulnerable volunteer firefighters from being exposed to the virus. Specifically, fire departments have had to reduce how many firefighters respond to calls.
 
This bill recognizes that not every emergency call requires all volunteer firefighters to be dispatched. The current LOSAP point system does not reflect the complexity of emergency response protocols, which only results in more emergency vehicles on our streets and represents a less efficient system. Updating the law from using a percentage of the total number of calls the department was dispatched to in calculating LOSAP points, to the total number of calls an individual was dispatched to will create a more equitable and efficient system.

NEW STATUTE:
Section 217 of the general municipal law is amended by adding a new subdivision (q) to read as follows:

(q) The program sponsor may make adjustments to the participation in department responses point system category provided for in paragraph(vi) of subdivision (c) of this section in the event that such program sponsor adopts written emergency response protocols setting different emergency response requirements for the fire department, fire companies, squads and units thereof such that certain participants are not permitted to respond and are restricted from responding to all non-emergency rescue and first aid squad calls and/or all emergency rescue and first aid squad calls. Such restrictions on response may relate to determinations made by the district physician or department's physician as to the duties that may be assigned to certain personnel. In the event that the program sponsor adopts different response requirements for different groups, participants in those groups shall be required to respond to the minimum number of emergency calls assigned to their group by applying the percentage provided for in paragraph (vi) of subdivision (c) of this section. Notwithstanding the provisions of section two hundred sixteen of this article, a point system amendment to address written emergency response protocols may be adopted by the affirmative vote of at least sixty percent of such governing board, without referendum. Such amendment shall only take effect as of the first day of January next succeeding the completion of the proceedings required for adoption of the amendment and shall only apply prospectively unless the new written emergency response protocol is adopted in order to address a state disaster emergency, as such term is defined in section twenty of the executive law, and applicable to the county or counties in which the fire department operates, in which case such amendment may be applied in the year adopted.

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:

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:

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):

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.

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.

As a result of the Governor extending the State Disaster Emergency to October 4, 2020, it has highlighted some confusion about the new legislation that allows sponsors to credit up to five (5) points per month during this Emergency. We thought it could be helpful to analyze the statute a different way, with the hopes that it might create some clarity for those sponsors struggling to determine the best course of action.

Before proceeding, we must clearly state that we are not attorneys and cannot give legal advice. This blog post is simply our best educated guess on how the statute should be administered. All board members are strongly encouraged to share this post and any other guidance you have found with your attorney before taking any action.

The following is the literal, word-for-word text of the new Section 217(p) of the New York State General Municipal Law broken out into its relevant parts. Each part is indicated by a number in parenthesis so we can refer to it later. We think this is helpful when trying to digest what it is saying, rather than looking at a big, single paragraph:

Here are our comments on each component section:
 
(1) The takeaway here seems to be the use of the term “a calendar year”. This implies that if the State Disaster Emergency is extended into 2021, it could allow sponsors to credit points in 2021 as well.

(2) This places the context of this new section of statute within the State Disaster Emergency declared by Executive Order 202. Therefore, there is a limitation placed on the period in which points could potentially be awarded – from March 7, 2020 until the end of the Emergency, which is currently October 4, 2020.

(3) This seems pretty clear – up to 5 points per month can be awarded, with proration for periods of less than a month. Since the statute stipulates up to 5 points, we don’t see why a sponsor could not elect to award a fractional number of points per month, such as 1.5 points per month. It simply cannot exceed 5.
 
(4) This is a key component of the paragraph that has created a lot of debate.

​The term “active volunteer firefighter” is a defined term in the statute, and means “a person who has been approved by the authorities in control of a duly organized volunteer fire company or volunteer fire department as an active volunteer firefighter of such fire company or department and who is faithfully and actually performing service in the protection of life and property from fire or other emergency, accident or calamity in connection with which the services of such fire company or fire department are required”.

Additionally, the statute says to each active volunteer firefighter.
 
Therefore, it would appear every individual that meets the “active volunteer firefighter” definition should be given the points. We think there is wiggle room to determine that locally, but everyone who fits into that category would be eligible for the points.

(4.1) This part of the statute was written such that a fire department would have adopted special rules that kept certain active volunteer firefighters from responding to alarms. This doesn’t stipulate that such special rules have been adopted in writing, but certainly from an audit-trail standpoint it would be preferred for those rules to have been in writing.

(4.2) This section seems clear – that activities were cancelled or not held, which prevented active volunteer firefighters from attending and, therefore, earning points for participating.
 
(5) We believe this is one of the overlooked components of this statute, and one that provides the clarity some may be seeking. This 5th section is a qualifier of the 4th – that the special response rules or cancelling of activities must have been done due to the guidelines related to the State Disaster Emergency. This could be important and nuanced, since the guidelines have changed frequently. It also means that just because the State Disaster Emergency was extended to October 4, 2020, it does not mean that an extra month (roughly) of points should automatically be given. The number of points awarded should tie in some way to restrictions in fire department activities, which were in turn tied to guidelines related to the Emergency.
 
(6) This section appears clear – it must be adopted by resolution of the political subdivision, with such resolution adopted by April 30, 2021.
 
(7) Again, this seems fairly clear – the resolution must state the number of additional points to be credited per month.
 
(8) This clarifies that the points awarded due to the Emergency are in addition to any other points earned. This means that the “COVID points” should be a sperate category and not shoe-horned into an existing category.