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.
This pandemic not only changed the way fire departments had to operate during the height of the pandemic, during a period of time, but may permanently change policies and procedures. The environment in which the statute was written seems to be one in which the Emergency and, therefore, how the fire department operates, was temporary. Therefore, the legislature allowed sponsors to address this short-term problem with a temporary solution.
However, there may be a point in which the temporary measures become permanent – either out of habit or a purposeful determination that those measures are in the best long-term interest of the fire department and its membership. We immediately think of in-person meetings versus video-conference meetings, or virtual training versus in-person training. Where that crossover line is must be determined locally by the sponsor before the resolution is adopted.
It is important to keep the proper perspective on the duration of the State Disaster Emergency. The possible continuation of the Emergency past October 4, 2020 should not mean the automatic additional granting of points to the new expiration date. Instead, a sponsor should be focusing on the lost opportunities for active volunteer firefighters to earn points.
The last alternative approach that might be helpful is to not focus on the specific number of points per month, but instead to focus on the total number of points the sponsor would like to award in 2020. All the sponsor must ensure is that the per-month amount does not exceed five (5) for the specific period. For example, if the sponsor determines than an additional 15 points should be awarded in 2020, then the period for which those points are being granted should be at least three (3) months. Changing that mindset could be helpful for some.
Finally, although this isn't required by the statute, we think it is a good idea for the sponsoring municipality to require the fire department to submit in writing a summary of how operations at the fire department were changed, including the events and activities that were cancelled. The fire department should also make a request regarding the number of points to be awarded. With this in hand, the municipality then has some context and detail on which to base a decision and adopt the resolution. Without that context, it is difficult for the municipality to make an educated, informed decision.
As always, please contact us with any questions, and check with your attorney!
On Friday afternoon (September 4, 2020), Governor Cuomo issued Executive Order 202.60, which "continued" the declared State Disaster Emergency until October 4, 2020. The original order that declared the Emergency was 202, and there have now been 61 "continuations" of that original order. (There was an order 202.55.1 if you are wondering if we can count properly.)
This is important to fire departments that may still be operating under restrictions due to the State Disaster Emergency, such as cancelling events or limiting at-risk volunteers from responding to calls. If this is still occurring locally, then firefighters would continue to lose opportunities to earn points that would have been earned for attending these cancelled activities. This was addressed in the recent amendment to the general municipal law allowing municipal sponsors to award up to five (5) points per month for each month that restrictions were in place. Since the awarding of these additional points is tied to restrictions imposed as a result of the Emergency, the extension of the Emergency also extends the period in which points can be awarded for cancelled events.
Even if the fire department is back to a typical activity level, there may be activities that were scheduled to be held after September 7, 2020 (the original expiration date of the Emergency), or even after October 4, 2020, that were canceled due to the planning involved in the activity. These events should be considered when the sponsor is determining the appropriate number of points to award.
Ultimately, the total number of points that are awarded by the municipal sponsor should be reflective of the events that were actually cancelled, and the missed opportunities to earn points for attending those events (or the chance to earn 25 points by responding to calls). Therefore, the extension of the Emergency should not automatically mean more points for the volunteers. We continue to suggest that the resolution adopted by the municipality include specific dates that tie to a specific number of points, thereby keeping some control over the total number of points being awarded. If an amending resolution is needed in the future, that could be done. We also continue to suggest that a municipality wait as long as possible to adopt the resolution, as the future of the State Disaster Emergency is cloudy at best.
Finally, no action should be taken by a fire department or municipality without getting advice from your local attorney. The volume and relative complexity of the number of Executive Orders requires insight from someone skilled and versed in these matters. Involving your LOSAP administrator in the discussion would be beneficial, but as with all legal matters this should be reviewed with your attorney before any action is taken.
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.