LOSAP Concerns Regarding COVID-19

With many fire stations on Covid-19 “lockdown”, fire department drills and meetings are being cancelled and limitations are being placed on the number of personnel allowed to respond to alarms and ride on apparatus.  Not surprisingly, there has been some concern expressed as to how this new reality will affect the ability of firefighters to earn years of firefighting service credit in Length of Service Award Programs (LOSAP).  There are some relatively easy adjustments that have been implemented by agencies around the state to compensate for the inability of firefighters to earn LOSAP points in the traditional and customary fashion because of Covid-19. 

The most prevalent way for LOSAP plan sponsors (the authorities having jurisdiction or AHJ) to provide for LOSAP credit under their present point systems is by implementing new on-line training and meeting opportunities and by establishing new response participation protocols for alarms.

Drills and Meetings.  In-person meetings and drills are virtually impossible under social distancing limitations.  However, by using platforms such as Zoom or GoToMeeting  (or YouTube livestreaming for very large groups), department meetings and drills may be conducted online.  For example, the Elsmere Fire Department in upstate New York recently conducted its first “Zoom Drill” with 65 firefighters participating online.  The online platforms are easy to utilize and allow for PowerPoint programs, whiteboards, and video clips to be inserted into the online presentations. 

As an alternative to hosting an online drill for all firefighters, “drill credit” can be awarded on an individual basis for self-directed training.  Under the LOSAP statute, a participant is allowed to earn up to 20 points annually for drills of at least two-hours duration.[1]  “Drills” are not defined in the law.  There is nothing that prohibits a department (sponsor) from deeming a particular training program or series of programs as a “drill” for department and LOSAP purposes.  For example, a firefighter’s online participation in mandated sexual harassment training is commonly awarded “drill credit”.  An AHJ, as LOSAP program sponsor, may choose to classify certain online programs as “drills”.  There are numerous online firemanic training opportunities that are readily available free of charge or at a nominal cost that could be deemed “drills” rather than “training courses” for LOSAP.  For continuity purposes, a “drill” program must be at least two hours in duration.

The LOSAP statute authorizes up to 25 points for training courses completed according to a sliding scale based upon the amount of time it takes to complete the course.  Therefore, successful completion of an online training course could generate credit under either the “training course” category or under the “drill” category if the sponsor so designates, but not under both categories for a single participant.

As a general rule, attendance in department meetings conducted over an online platform can (and should be) restricted to members.  For both drills and meetings, proper planning of the program is essential for efficiency.  Likewise, conducting a practice meeting or “dry run” that allows participants an advance opportunity to sign-on can be hugely beneficial in giving those members who have limited computer savvy the ability to practice the process of signing on.

Participation in Department Responses to Alarms.  This provision is central to the LOSAP law in that it awards points for “participation” in responding to calls.  Some departments have been limiting the number of personnel responding to calls by assigning crews or shifts for response during specific time periods.  Those individuals on a designated shift or crew would respond to the station and staff the apparatus on a pre-coordinated basis.  Those not designated to respond would not respond unless the nature of the call warranted (e.g. working structure fire), or there was a special call for additional responders.  Some departments have also encouraged or directed higher risk members not to respond to calls so as to eliminate the chance for higher risk firefighters to become exposed to the virus at the station or on a call. 

Just like the word “drill”, the words “participation in department responses” are not defined in the law.  “Participation” in the current pandemic situation could be deemed to be being available to respond, but standing down and not reporting to the station by virtue of standing orders implemented by the Chief on behalf of the AHJ.  In this way, response to alarm credit could be awarded to a firefighter who was not permitted to report to the station or to the scene, but who was available to respond and would have done so if permitted.

For LOSAP accountability purposes, there should be a verification system in place that requires some action on the part of the firefighter to register his intention and availability to respond to the call, even though he is not physically reporting to the fire station due to the order of the Chief or AHJ directing him not to do so.  In order to get “credit” for the call, the “responding”– but not physically reporting — firefighter could be required to email his availability to respond to the call to a specially designated email address created expressly for receiving firefighter “available to respond” acknowledgements.  For example, a free email address could be created in Gmail or unique email address using the fire department’s domain name could be implemented for receipt of the acknowledgment emails.  The same objective could be accomplished by having the “non”-responding firefighter use instant messaging to a designated number or by messaging over one of the electronic dispatch platforms utilized in the fire service.  The firefighter’s acknowledgement of his availability to respond should be sent while the call is ongoing and perhaps kept open for a brief period of time after the call is cleared depending on the duration of the call.  By using this means of acknowledging the ability to respond to the call, there will be a documented, dated and time-stamped record of the firefighter’s availability to respond that can be counted for LOSAP “participation in department responses” purposes, even though the firefighter has been instructed not to respond so for Covid-19 safety purposes.   

Common sense controls will need to be implemented to prevent abuse of the “able to respond” protocol for the LOSAP credit process.  Obviously, persons who are unavailable to respond by reason of location (e.g. residing in Florida for the month) should not be given credit even if they are able to monitor calls and are able to acknowledge their “availability” over electronic means.  While we have heard suggestions from more than one department about implementing a blanket policy where “everybody gets credit for every call”, this approach seems contrary to the intent of the LOSAP program and will likely result in inequitable results by giving credit to persons who may not be legitimately deserving of the credit.

The current situation calls for innovation and creativity in generating training and meeting opportunities and providing a safe and efficient system for responding to calls.  Earning LOSAP points will necessarily flow from each department’s development of a thoughtful process to implement a workable response and training policy that suits its needs and that adapts to the current challenge of limiting interpersonal contact.

There is some expectation that legislation will be enacted by the New York State Legislature to address the ramifications of Covid-19 on LOSAP programs in the volunteer fire service.  While that possibility exists, there are effective measures that can be taken right now at the department (AHJ program sponsor) level to create solutions to the inevitable drop-off in LOSAP point-earning opportunities.

In response to the pandemic, we need to adjust to operate under the “new normal” which in the first instance, requires us to protect “our own”.  LOSAP is part of the equation, but the ability to earn points cannot take precedence over employing safe and thoughtful practices in the firehouse.

Suggested Covid-19 Precautions for the Fire Station. 

1.  Be safe and be smart.  Firefighters who find themselves in the higher risk groups as identified by the CDC should strictly adhere to the medical guidelines that have been promulgated for their protection.  Responding to calls should be restricted by the Chief or the AHJ if the firefighter is not already self-limiting or self-restricting his participation.  Simply stated: if you have “higher risk”  people per CDC guidelines, they should not be allowed to answer calls or congregate at the fire station where they could become exposed to someone carrying the virus.

2.  Access to fire stations needs to be limited to control the potential for Covid-19 exposure in the station and amongst personnel. Having firefighters “hanging out” in the station waiting for the crew to return after a run or because it’s part of their normal daily routine should be prohibited, because it is inconsistent with social distancing guidelines and increases the potential for transmitting the virus to others or contaminating the station.

3.  The number of personnel responding on apparatus should be kept to a functional minimum.  All touchable surfaces in the apparatus and all equipment utilized on the call should be cleaned and disinfected after use.

4.  Aggressive cleaning and sanitation practices need to be carried out in the station.  Countertops, furniture, door handles, sink faucets, toilet handles, and hand rails in the station need to be cleaned and disinfected regularly and thoroughly.

5.  Appropriate PPE must be provided to all personnel.  Suitable PPE — including masks and gloves in particular — are now legally required to be provided to “all employees” pursuant to a recent Executive Order of the Governor.  Masks should be worn as directed at the station and on calls.  Where the supply of masks is limited, a method of disinfecting masks for multiple uses ought to be implemented as well.  Something as simple as using a brown paper bag and letting the mask sit unused for a period of days seems to be a preferred method of keeping masks in circulation in many locales.

Many departments instituted safe practices shortly after the outbreak and have strictly adhered to the recommended safety and social distancing procedures.  They are to be commended for their concern for their members and employees.  The effect of the restrictions implemented to control the pandemic will undoubtedly have an impact on the ability of some firefighters to earn LOSAP credit.  However, with guidance from the plan sponsors and a willingness from chiefs, officers, and members to try learning things and doing things in new and different ways, there should be sufficient opportunities for firefighters to earn their necessary points in 2020.

This article was written by General Counsel for FASNY at the request of FASNY President Steven Klein for the use and benefit of FASNY members and in an effort to assist the volunteer fire service in New York State.

DISCLAIMER: The information contained herein does not establish an attorney-client relationship between the author and the reader.  Matters addressed are for information purposes only and the reader should seek advice from competent local counsel in regard to taking action on any matters addressed herein

[1] General Municipal Law § 217.

UPDATE:  FASNY Member Advisory Regarding Proposed Legislation Affecting LOSAP

On May 27, 2020, both the New York State Senate and Assembly passed FASNY- endorsed legislation (Senate Bill 8251-B Assembly Bill 10438-A) that will allow Length of Service Award Program (LOSAP) Sponsors to authorize the crediting of up to an additional five points per month for participants in a firefighter LOSAP program under new General Municipal Law Section 217(p).  The maximum additional five points may be awarded if “special emergency response rules” were in place during the period of the declared Covid-19 state disaster emergency that restricted:

  1. a firefighter’s (LOSAP participant’s) ability to respond to calls; and/or
  2. the holding of activities (such as drills and meetings) for which points would have been awarded to a participant had the state of emergency not prohibited the conducting such activities.

In order for the additional points to be awarded, the political subdivision controlling the fire service agency (the authority having jurisdiction [AHJ] and Plan Sponsor) must adopt a resolution determining the number of additional LOSAP points to be credited each month.  The AHJ has until April 30, 2021 to adopt such a resolution.  The additional points authorized by this legislation are to be credited to a participant in addition to other LOSAP points the participant earned during the same time period.

The bills that were passed by the Legislature were revised versions of a bill that had previously contained separate provisions for activities and call responses. The approved legislation also provides similar amendments to volunteer ambulance worker award programs. 

It is important to note that although this legislation has been passed by both chambers of the State Legislature that it cannot not become law until approved by the Governor.

FASNY will continue to keep you informed of any significant legislative developments involving Covid-19 legislation.