By Timothy C. Hannigan, FASNY Attorney
New York’s volunteer firefighters are on the front lines of the State’s battle against Covid-19. While our hope is that you never have to use this information, what follows is an overview of current and pending benefits available to volunteer firefighters in connection with the Covid-19 outbreak.
1. Volunteer Firefighters’ Benefit Law (VFBL)
VFBL is to the volunteer fire service what Workers’ Compensation is to paid employees in the civilian workforce in New York State. In fact, VFBL claims are administered and cases are adjudicated by the New York State Workers’ Compensation Board and not by any fire-related state agency.
VFBL is intended to provide for firefighters and their families “some measure of protection against loss from death or injuries in the line of duty.” VFBL benefits are designed to pay for medical treatment and for lost income for injuries arising out an injury that occurs while a firefighter is “on duty”. The duties and activities of a volunteer firefighter that are deemed to trigger the applicability of VFBL coverage go far beyond responding to fire alarms and extend to numerous activities and functions such as attending training or conventions participating in fundraising events and in certain firematic competitive tournaments to name a few. The full listing of on-duty activities for which
VFBL coverage may be provided are set forth in VFBL § 5 and are worthy of review, particularly by civil and chief officers as well as members of the governing authority having jurisdiction (AHJ). The applicability of VFBL coverage for a particular event is sometimes dependent on the AHJ’s prior approval of a firefighter’s participation in the particular event.
A. VFBL and Covid-19
It should come as no surprise that there was (and as of the date of this writing, is) no provision in VFBL dealing with Covid-19 exposure or illness. While the virus has had an unprecedented impact on the activities of daily living of all Americans, it has created profoundly serious ramifications for front-line first responders in the volunteer fire service and our partners in EMS and law enforcement.
One of (if not the biggest) concerns volunteer firefighters raised at the outset of the pandemic is “Am I covered by VFBL if I get the virus while on a call?” It is the opinion of General Counsel for FASNY that the answer is “Yes”, VFBL provides coverage for “injury” from Covid-19 incurred while a volunteer firefighter is “on duty”. This opinion is consistent with a 1983 New York State Comptroller’s Opinion that stated that the contracting of a contagious disease while “providing such (volunteer firefighting) service would seem to constitute an ‘injury’ for which benefits are available” under VFBL §3(4).
The determination of what is a covered injury is initially left up to the VFBL insurance carrier (or self-insured entity) when a claim is presented. It is ultimately a decision of the Workers Compensation Board or the State Supreme Court to validate or overturn a carrier’s decision to deny a claim. At the onset of the pandemic, FASNY was in contact with representatives of various VFBL insurance providers. Based upon what we learned in those discussions, it was apparent that certain insurance carriers were receptive to the prospect of paying Covid-19 illness claims. Based upon our review relevant cases pre-dating the Covid-19 outbreak, and upon or discussions with certain VFBL carriers, we are confident that any line-of-duty- caused Covid-19 illness will trigger VFBL coverage for an affected volunteer firefighter.
(1) Is there a presumption that a firefighter who contracted Covid-19 was exposed as a result of on-duty activities? As of the date this article was written, the answer is “No”. However, that may change based upon legislation pending in the New York State Legislature. In March, Senate Bill S8041-a and Assembly Bill A10172 were introduced in in the Legislature seeking to amend the VFBL. The proposed legislation creates a legal presumption that a volunteer firefighter who contracts a Covid-19 related illness following a line-of-duty exposure to the virus contracted the illness in the line of duty, and any ensuing condition, impairment of health, or death would be covered by VFBL. The proposed legislation also authorizes immediate testing and treatment of a volunteer firefighter after exposure to Covid-19, even before a VFBL claim is filed. In addition, the proposed legislation amends the Volunteer Ambulance Workers’ Benefit Law to create the same enhancements as provided under VFBL.
(2) Is there VFBL coverage for an exposure to Covid-19 that leads to a quarantine but does not result in illness? This is a more problematic question to answer. It will likely be determined in the first instance by a carrier or self-insurer’s decision as to whether an “exposure” to the virus necessitating quarantine that does not result in firefighter actually contracting the virus constitutes an “injury” under VFBL § 3(4). That statute defines “injury” as including “any disablement of a volunteer firefighter that results from services performed in the line of duty and such disease or infection as may naturally and unavoidably result from an injury.” If a firefighter’s exposure to the virus (as opposed to a firefighter actually contracting the virus) results in “disablement”, it arguably should constitute an “injury” under VFBL §3(4). Because of the recent appearance of Covid-19, there are no court cases providing a precedent specifically concerning Covid-19 claims. As noted by a New York State appellate court in two cases concerning firefighters who suffered fatal heart attacks while on duty, all that is required to be shown to prove a claim “is that a disablement resulted from services performed in the ‘line of duty’.”
Whether an “injury” occurs where a firefighter’s exposure to Covid-19 results in the need for quarantine but without the firefighter ever actually contracting the virus will likely depend on how the VFBL carrier or self-insurer classifies the claim at the outset. Fortunately, given the limited time needed for quarantine (14 days) and the paltry maximum benefit that would be paid for that two-week period ($800 under the present law) of temporary disability, we expect that VFBL carriers and self-insurers will accept these claims without objection.
(3) Reporting a VFBL claim
The process for reporting a VFBL claim for Covid-19 exposure and related illness is the same as reporting any other type of line of duty-related injury. A firefighter should provide immediate notification to a Chief officer and to the AHJ. The customary VF-3 claim form must be completed by the claimant to report the injury. Further information concerning the process to be followed and the benefits that may be received, can be found here.
2. Public Safety Officers’ Benefits Program
The Public Safety Officers’ Benefits (PSOB) program is administered by the United States Department of Justice and provides a one-time death benefit to the survivors of volunteer firefighters whose deaths were a direct result of an injury sustained in the line of duty. PSOB also provides an on-time benefit to eligible public safety officers who become permanently and totally disables as a result of a catastrophic injury sustained in the line of duty. PSOB defines injury as “a traumatic physical wound or a traumatized physical condition of the body directly and proximately caused by … infectious disease … virus … but does not include –any occupational disease…” Based upon the plain meaning of the definition of injury it seems logical that PSOB benefits will be extended to Covid-19 line of duty deaths and disablements. A wealth of information concerning the PSOB program, how to file a claim, and the benefits provided, is available here.
A Final Note – Health Insurance for Volunteer Firefighters
The Covid-19 pandemic has resulted in rates of unemployment not seen since the 1930s. This no doubt has impacted members of our volunteer firefighting family in New York State. While certain health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) are required to be extended by employers to employees who lose their jobs, volunteer firefighters in need of health insurance have an alternative available to them under New York State law.
General Municipal Law § 92-a (7) permits volunteer firefighters and volunteer ambulance workers to purchase – at their own expense – the same health insurance that a governing public corporation (i.e town government) provides to its employees.
Although the individual firefighter must pay the entire amount of the monthly premium for such health insurance, this is a valuable option for volunteer firefighters who are presently without health insurance coverage. Interested firefighters may contact their AHJ or the village or town that they serve in to obtain information regarding pricing and enrollment.
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.
1Volunteer Firefighters’ Benefit Law § 2.
2 Gen Municipal Law § 204-a “Raising of funds for fire company purposes”; VFBL §5 (1) (m).
3NYS Comptroller’s Opinion 83-115.
4 Matter of Rigali v Town of Colonie, Verdoy Fire Dist., 47 AD2d 507 (3d Dept 1975); Matter of Hoff v Incorporated Vil. of Williston Park, 50 AD2d 631 (3d Dept 1975).