TML Coronavirus Update

Aug 27

[ARCHIVED] August 27, 2020 TML Coronavirus Update #111

The original item was published from August 27, 2020 3:02 PM to August 27, 2020 5:22 PM

Urgent Updates


Will there be an Update tomorrow?


Only if we need to convey urgent information.


What’s the latest on the Gulf storms?


Based on very preliminary reports, officials in Southeast Texas are “sounding optimistic that their corner of the state had escaped the worst of the hurricane's impact.” Even so, more than 100,000 Texans are without power in the East Texas counties of Jefferson, Orange, and Hardin.


If you need hurricane-related assistance, the Texas Municipal League Intergovernmental Risk Pool has resources available for cities, including a link to the main TML’s emergency management web page. If you need further TML IRP assistance, please contact one of the following:


-Mike Rains 512-491-2342

-David Nix 512-491-2347

-David Goldston 512-491-2426


City officials who need immediate assistance from TML legal can contact Scott Houston, TML general counsel, at or by phone at 512-231-7464. 


What’s the latest on testing results in Texas?


According to The Texas Tribune, after state officials this month “disclosed that hundreds of thousands of coronavirus tests had not been previously reported — a backlog that has distorted metrics used to gauge the toll of the pandemic — the governor said that the current data is ‘far more accurate than what we had last month.’”


The disclosure of the backlog, reported the Tribune, was the latest in a string of data problems that have plagued the state’s public accounting of the pandemic and comes as schools and universities prepared to resume instruction for the fall term.


A spokesperson for the Department of State Health Services said positive tests revealed in the backlog show there might have been more infections in July than state officials previously knew about, but the “additional cases would not have changed the overall trend or the recommendations for the public.”


Meanwhile, the state’s positivity rate — the rolling average of people who test positive — swung wildly this month as backlogged tests were added, soaring to 24.5 percent on August 11 and plummeting to 10.8 percent a week later.


Abbott, who frequently cites the metric to explain his decision-making, has said anything above a 10 percent would raise a “warning flag,” while a sustained rate below that could prompt him to loosen restrictions.


(The article summarized above includes conversations with epidemiologists and health experts about the backlogged tests and what the state can expect with schools and universities resuming online or in-person instruction and the Labor Day holiday approaching.)


What is the Safeguarding America’s First Responders Act of 2020?


On August 14, 2020, the President signed into law the Safeguarding America’s First Responders Act of 2020, which creates a presumption of eligibility for federal death and disability benefits. The presumption flows from the Public Safety Officers Benefits Program, which provides benefits for public safety officers (PSOs) who contract COVID-19 in the line of duty.  


Eligible PSOs include law enforcement officers, firefighters, chaplains, certain emergency management personnel, and EMS personnel, including rescue squads, ambulance drivers, paramedics, and EMTs. 


Specifically, PSOs are eligible for death benefits if: (1) the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; (2) the officer was diagnosed with COVID-19 during the 45-day period beginning on the last day of duty of the officer; and (3) evidence indicates that the officer has COVID-19 (or complications therefrom) at the time of the officer’s death. 


Similarly, PSOs are eligible for disability benefits if: (1) the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; and (2) the officer was diagnosed with COVID-19 during the 45-day period beginning on the last day of duty of the officer.


Further Updates


Has a court ruled on the validity of the Department of Labor regulations implementing the Families First Coronavirus Response Act (FFCRA)?


Yes. On August 3, 2020, a federal court in New York, in response to a lawsuit filed by the State of New York, struck down certain provisions of the DOL’s regulations implementing the FFCRA. 


What does this decision mean for employers, including cities, in Texas? In its lawsuit, the State of New York did not ask that the ruling be applied nationwide, and the court did not issue a nationwide injunction. As such, it’s likely the decision is only instructive to those who are outside the court’s jurisdiction (e.g., Texas employers, including cities).  


 Specifically, the court:


-Struck down the “work-availability” requirement, which excludes employees whose employers do not have work for them from qualifying for paid benefits under the FFCRA. This means that eligible employees who are on furlough or are unable to temporarily work due to a site closure may qualify for paid FFCRA leave. 

-Determined that the DOL’s definition of healthcare provider (who may be excluded from receiving benefits) was too broad because it did not tie the definition to the duties of the employee.

-Invalidated the DOL’s requirement that employer consent is required before an employee can intermittently (i.e. in separate periods of time, rather than one continuous period) take emergency paid sick leave for certain qualifying reasons, as well as emergency family and medical leave. However, the court upheld the DOL’s rule that prohibits the use of intermittent emergency paid sick leave where there is a high risk that an employee will spread COVID-19 to other employees.

-Concluded that the DOL’s requirement that an employee furnish documentation before taking leave was an invalid exercise of its authority, but upheld the requirement that an employee provide documentation to support the employee’s need for leave.


As of today (August 27), the DOL has neither appealed the decision nor amended its regulations to comply with the court’s decision. We will continue to monitor this issue and provide updates accordingly.


What guidance has the Department of Labor issued about tracking teleworking employees’ hours of work?


On August 24, 2020, the DOL issued Field Assistance Bulletin No. 2020-5. The bulletin requires, in accordance with the Fair Labor Standards Act (FLSA), requires employers to track the number of hours an employee works, regardless of whether the employee is teleworking or working remotely. It applies only to non-exempt employees (i.e. generally those who are eligible for overtime pay). 


The FLSA requires an employer to pay its employees for all hours worked, including work the employer did not request but nonetheless “suffered or permitted,” including work performed at home. This means, if the employer knows or has reason to believe that work is being performed, the time worked must be counted as hours worked. Additionally, if the employer has, through reasonable diligence (as discussed in the bulletin), acquired knowledge of additional unscheduled hours, such work hours must be counted as hours worked.  


Of course, a city as employer can avoid having to determine compensable hours by implementing a policy that prohibits unauthorized overtime and/or discipline employees for violating such policy. 


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.