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Mar 25

March 25, 2020 TML Coronavirus Update #8

Posted on March 25, 2020 at 4:07 PM by TML Staff

Urgent Updates


Who is eligible to apply to early vote by mail on the grounds of disability?


Section 82.002 of the Texas Election Code provides that a “qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” (Note: qualified voters 65 years of age or older are also eligible for early voting by mail pursuant to Election Code Section 82.003.)


Cities holding May elections should expect an increase in the number of applications for ballots by mail on the grounds of disability under Election Code Section 82.002. Under the circumstances, and due to the subjectivity of the standard for disability in the statute, city election officials are encouraged to accept applications for ballots to early vote by mail at face value and process them. The voter, not a city election official, must make a determination as to whether the disability standard applies to them. A voter who submits an application for a ballot by mail must acknowledge on the application that including knowingly false information on the application is a criminal offense. See Tex. Elec. Code § 84.0041.


Does a city’s business closure order apply to a gun store? 


Some cities have enacted non-essential business closure disaster orders. In response to one city doing so while not expressly exempting gun stores, State Representative Dustin Burrows (R – Lubbock) has requested an opinion from the attorney general. The request quotes existing state law preempting municipal regulation of firearms, and asks whether that existing law means gun store owners are automatically exempt from a city’s order.  The answer is thus unclear at this time.


Has the Department of Labor issued guidance on the Families First Coronavirus Response Act (FFCRA)?


Yes. We reported last week that, in response to the COVID-19 pandemic, Congress adopted new legislation that expands the Family and Medical Leave Act and provides for paid emergency sick leave. Yesterday, the Department issued an initial set of questions and answers (Q&As) interpreting this legislation. Of note is that the Q&A sets the effective date of the FFRCA provisions as April 1, 2020. Although the Q&A provides additional information, many questions remain unanswered. As provided under the legislation, further guidance and implementing regulations are expected in the near future. We will continue to monitor and report back on this issue.


The Department has also indicated that they do not intend to enforce the requirements of the Act through April 17, 2020, to enable covered employers to come into compliance with the new legislation. 


Has the Department of Labor released a copy of the notice that an employer is required to post?


Yes. This morning, the Department released a copy of the notice that an employer is required to post. Each city must post the notice in a conspicuous place on its premises, and may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. The Department has also issued a set of FAQs related to the notice.


How can a city participate in providing input to the Department of Labor in regard to the implementation of FFCRA?


The Department is providing an opportunity for employers, workers, and their advocacy groups to participate in a national online dialogue through Sunday, March 29, 2020. According to the Department, “[t]his national online dialogue provides an opportunity for employers and workers to play a key role in shaping the development of the Department of Labor's compliance assistance materials and outreach strategies related to the implementation of FFCRA. The Wage and Hour Division (WHD) will use the ideas and comments gathered from this dialogue to develop compliance assistance guidance, resources and tools, as well as outreach approaches that assist employers and workers in understanding their responsibilities and rights under the paid leave provisions of the FFCRA.”


Interested cities must register to participate.


Further Updates


If a city decides to issue a shelter-in-place order, should certain businesses and activities be exempt from the order?


This question was originally addressed in the March 24, 2020, update. Certain “critical infrastructure” is typically exempted. That list from the U.S. Department of Homeland Security is fairly broad. In addition, several industry groups (some of which are already covered in the list) have reached out to the League asking that we share their information with city officials.  One group that just missed the deadline yesterday is the American Council of Engineering Companies of Texas, which asked in a letter that engineers be exempted from state and local orders. We will continue to supplement the list in future updates.


Is TML still open for business given the City of Austin’s shelter-in-place order?


While the building is closed to all but essential personnel, most TML staff members are working remotely. The League remains open for business and is fully ready to serve. Cities are encouraged to call or email for legal assistance, help with ordinances, or for general advice or assistance. Let us know how we can assist you and your city.