We recently received the following question:
A member is an employee for a municipal EMS entity and attends that entity’s EMS related training courses of 4 to 8 hours each and receives an acceptable certificate of completion. The employee is paid while taking the course by the employer. The member then submits the certificates with a LOSAP training form to the volunteer agency for credit. Is there anything that precludes the member from receiving LOSAP credit for the related EMS training courses? I could not find anything to the contrary in the law or other State Comptroller literature that would preclude giving the member points for the related EMS training.
This is a terrific question and I appreciate the opportunity to answer it. Since this is a matter of opinion, we strongly recommend printing this post and bringing it to your local attorney for guidance, as we at Firefly Admin Inc. do not provide any agency or municipality with legal advice for their specific situation. There are very nuanced parts of this answer that must be worked through with your local legal council.
Another thing to note is that our targeted audience is volunteer firefighter LOSAPs as described in Article 11-A of the NYS General Municipal Law. Although this question does have applicability to a firefighter program, it clearly would have applicability to an ambulance squad program. So I’d first like to look at one aspect that is different between the fire department statute (11-A) and the ambulance squad statutes (11-AA and 11-AAA).
Up until December 2015, Article 11-A included the following language in §217(f):
In computing credit for those active volunteer firefighters who also serve as paid employees within a political subdivision of the state, credit shall not be given for activities performed during the individual’s regularly assigned work periods.
This section of the statute was repealed by Chapter 534 of the Laws of 2015. However, the companion sections of the statutes in 11-AA and 11-AAA (the volunteer ambulance squad programs) were not repealed and they can be found in §219-e(6) and §219-m(6) respectively.
So for the ambulance squad programs governed by 11-AA or 11-AAA of the General Municipal Law, this language would lead us to believe that the best interpretation is to not grant points for training courses taken while on the clock for a municipal EMS entity. However, there are some immediate challenges to that position, first, what if the training is outside of “regularly assigned work periods”, and what if the agency is not a municipal agency that would meet the definition of the individual being a paid employee of a “political subdivision of the state”?
Both of those challenging questions essentially lead us back to the volunteer firefighter programs, since the municipal-employee restriction was repealed from Article 11-A. In dealing with the firefighter programs, there is one helpful opinion from the Office if the State Comptroller, which can be seen here:
https://www.osc.state.ny.us/legal/1997/legalop/op97-13.htm
It would be beneficial to read the entire opinion, but the takeaways include some clarification of what an active volunteer firefighter is, as well as the following opinion:
Accordingly, it is our opinion that a volunteer firefighter may not be granted points for training unless the training is approved by the chief or board of fire commissioners.
With that in view, it certainly would stand to reason that any volunteer firefighter should obtain approval for a training course before attending, and before points should be awarded for attending such course.
The detail provided regarding the definition of an active volunteer firefighter is also very important. The relevant question would seem to be, is that individual taking the training an employee of his/her employer, or a volunteer? If the individual is injured at the training, is he/she covered by workers’ comp insurance, or VFBL insurance? Is it possible for an individual to be a “dual-hatter” so-to-speak – meaning, being both an employee and a volunteer at the same time? If the person is not a volunteer, it makes it more difficult to award points for that activity.
It is important here to keep in mind the spirit of the law – to encourage and reward volunteering with a local fire department (and ambulance squad). By being paid to be at the training, the LOSAP points are not encouraging that individual to be there. However the ultimate LOSAP benefit may encourage that individual to be a volunteer, and it would stand to reason that a volunteer agency would desire the skills of someone who is a paid parametric or EMT. So awarding the points for the training would incentivize that person to volunteer outside of that training exercise.
It is our opinion that the best practice would be to not allow points for training courses taken while being paid by another agency, regardless if it is a municipal agency or not. That is, provided the course was approved by the chief or commissioners. If the course is not approved, then according to the Comptroller’s Opinion, no points can be awarded. But as the person asking the question pointed out, there doesn’t appear to be any direct guidance on this issue from the State or the Court, so there is room for interpretation. Furthermore, there is possibly reason for allowing the points to be awarded (if it encourages volunteering in total).
Again, bring it to your local attorney and work through the specific details with him/her. This blog post does not replace getting the qualified opinion of an attorney for your local scenario.
As always, we’d appreciate your thoughts.
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