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Apr 09

April 9, 2020 TML Coronavirus Update #19

Posted on April 9, 2020 at 5:21 PM by TML Staff

Urgent Updates


Are there reputable firms or organizations that are helping Texas cities procure reasonably-priced Personal Protective Equipment (PPE)?


Yes, the League is aware of these organizations or companies that are successfully (based on at least one positive member city reference) procuring PPE at this time.


Has the governor provided any further information regarding golf courses?


Not formally. We reported yesterday (April 8, 2020) that the governor stated on a call with county judges and mayors across the state that golf course employees don’t provide essential services under his existing order. The argument all along for golf courses staying open wasn’t that they are essential services. Rather, it was the exception for essential daily activities found in the governor’s order:


“This executive order does not prohibit people from accessing essential services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential services, visiting parks, hunting or fishing, or engaging in physical activity like jogging or bicycling, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.”


League staff reached out to the governor’s office for clarification, and his office reiterated that the golf course operations (League staff assumes that means the pro shop, café, tee time scheduling, golf carts, etc.) are not “essential services” and thus may not open. We were also reminded that, according to the attorney general’s office, a mayor can seek clarification about the governor’s order.  The mayors of the Cities of Kerrville and San Angelo did just that: They submitted a letter requesting clarification, and we await a response. Also, a staff member at the governor’s office confirmed by text this afternoon that “They [golf courses] can’t conduct business. No personnel.” Of course, that in-and-of-itself isn’t binding on anyone without a formal action by the governor himself.


The bottom line today appears to be about the same as it was yesterday: golf course offices and operations should now be closed, although a city could allow people to use a course for walking or jogging. Could the city just allow golfing without employees present or with minimal scheduling and cart staff? That’s unclear. Certainly, a city that allows the use of a golf course for any activity should ensure the safety of patrons. Beyond golf courses, each city decides whether to close all or a portion of its parks. 


Unless and until a formal opinion from the governor’s or attorney general’s office is released, our bottom line advice remains the same. Of course, we defer to each mayor – on the advice of his or her city attorney – on local enforcement protocols. 


Are city employees entitled to hazard pay?


Hazard pay for city employees is not mandated by state or federal law. State law requires state agencies to pay its eligible state employees hazard duty pay. Tex. Gov’t Code §659.302.  But no similar law requires a city to provide hazard pay to its employees. A city can choose to do so by enacting a policy allowing for such pay. Additionally, city personnel should review their emergency management plan to determine if and under what conditions hazard pay is authorized.


How can we encourage Congress to allocate more stimulus funds to all local governments?


Congress is contemplating a fourth stimulus package, which would follow the passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The CARES Act provides funds directly to units of local government with a population that exceeds 500,000.


Yesterday, Congressman Joe Nuguse (D – Colorado) introduced the Coronavirus Community Relief Act to provide a separate $250 billion stand-alone fund for COVID-19 related costs for communities with fewer than 500,000 residents.


We encourage you to contact your member of Congress to show your appreciation for their leadership on the CARES Act and to encourage the passage of the Coronavirus Community Relief Act. We specifically ask that you encourage your congressperson to support the following:


-A stabilization fund for ALL cities and towns. All cities across Texas, regardless of population, must have direct access to stabilization funds for local budget relief. If a population threshold is unavoidable, local governments must be permitted to apply jointly to meet that threshold. 

-A fix for the unfunded mandate in the Families First Coronavirus Response Act (FFCRA) that prevents governmental employers from receiving federal tax credits to offset the cost of providing additional paid emergency leave. Most employers will be fully reimbursed for complying with FFCRA requirements. However, this is not the case for local governments. Sections 7001(e)(4) and 7003(e)(4) prohibit local governments from receiving the tax credits that most other employers, whether non-profit or for-profit, get. Therefore, the cost of this additional leave will be fully borne by local governments despite the additional budgetary challenges already present as a result of COVID-19.


Further Updates


Have any cities had success with moving special elections to a non-uniform date?


Yes. But only with respect to special elections. (The Secretary of State’s Elections Division has made clear their position that the governor can’t allow the general election for city officers on any date other than the November uniform election date. Moreover, the Elections Division has issued guidance suggesting that cities have no choice but to move their May general election to November.) The problem with special elections is that they don’t fall under the governor’s order allowing cities to move their general elections to November. That’s because the Elections Division concluded that he doesn’t have the legal authority to do so. Examples of special elections that have been changed include:


-Local Street Maintenance Sales Tax Reauthorization Election: The governor by order moved the City of Sundown’s street maintenance sales tax reauthorization election date to July 14, 2020 (the new date for the primary runoff election).

-Crime Control and Prevention District Continuation Election: The governor by order moved the City of Fort Worth’s Crime Control and Prevention District continuation election to July 14, 2020.

-Constitutional Special Election to Fill a Vacancy:  The City of Anna obtained a court order allowing it to move a special election to fill a vacancy to the November uniform date. Article XI, Section 11, of the Texas Constitution requires a city that has three- or four-year terms to fill a vacancy at an election “called for such purpose within one hundred and twenty (120) days after such vacancy or vacancies occur except that the municipality may provide by charter or charter amendment the procedure for filling a vacancy occurring on its governing body for an unexpired term of 12 months or less.” The court order relieved the city of the requirement to hold the election within 120 days. 

-Home Rule Charter Runoff Election: The City of Eagle Pass obtained a court order moving its charter-based runoff election to a non-uniform date in September. Even so, the city has requested that the governor issue a proclamation as well. 


What is a furlough?


The term “furlough” does not have an exact legal definition, but it is generally understood to mean mandatory unpaid time off from work for a certain time period that is limited in duration. A reduction in pay alone, without any corresponding unpaid time off, is not typically considered to be a furlough. Employers typically use furloughs in times of significant economic downturns that are temporary in nature as an alternative to terminating or laying off employees or implementing across-the-board pay cuts. A furlough can be accomplished in a number of ways, including by reducing – for a certain time period – the number of hours or days an employee works with an equivalent reduction in pay or requiring an employee to take a certain amount of unpaid time off. A furlough may include all employees or may exclude some employees, such as employees who provide or support essential or critical services. Additionally, unlike a termination or a layoff in which there is a separation of the employment relationship, a furloughed employee is still considered to be an employee. 


A city that is considering a furlough for all or some of its employees should work with local counsel to develop a policy that addresses, among other things, which employees will be subject to a furlough, who approves furloughs, how long a furlough will be in place, and what benefits, if any, an employee will continue to accrue during a furlough. A city should also review any contractual requirements, including any meet and confer agreements and collective bargaining agreements, before taking action to furlough employees who are subject to those agreements. 


May a city furlough exempt and non-exempt employees?


Absent any contractual obligations, a city may furlough both exempt and non-exempt employees. Because an employer is only required to pay for the hours a non-exempt employee actually works, a city may reduce the number of hours a non-exempt employee is scheduled to work provided that the employee is paid at least the minimum wage ($7.25/hour) for all hours worked and any applicable overtime pay.  


Generally, under the Fair Labor Standards Act (FLSA), certain exempt employees (executive, professional, administrative, and certain computer employees) must be paid a “predetermined salary” (a minimum of $684/week) for any workweek in which the employee works without regard to the quantity or quality of work. Failure to do sogenerally results in the exempt employee losing his or her exempt status. However, a special rule applicable only to public sector employers, including a city, allows for an exempt employee to retain his or her exempt status except in the workweek when furlough is taken and the employee’s salary is reduced accordingly. See 29 C.F.R. §541.710. This provision allows an exempt employee to take furlough in less than full workweeks. For example, an exempt employee can take every Tuesday (8 hours) as a furlough day, and the city is only required to compensate the employee for 32 hours worked during that workweek. During such workweek, the employee is treated as a non-exempt employee, is paid on an hourly basis, and is entitled to overtime pay if the employee works more than 40 hours in that workweek. Cities should ensure that in a workweek when furlough is taken, the combination of worked hours and furlough hours do not exceed 40 hours, otherwise the employee will be entitled to overtime. As such, most furlough policies prohibit an employee from performing any work on the day(s) when the employee is on furlough, including tasks such as checking or responding to emails or voicemails, answering phone calls, or attending meetings.


Cities that are contemplating a furlough may want to review the Department of Labor Fact Sheet #70, which provides additional information on wages issues that may come up during a furlough.


Can an employee use his or her paid accrued time off to supplement the employee’s pay during a furlough?


Yes, but only if a local policy allows for it. Some policies require or allow an employee to use his or her accrued paid time in lieu of a furlough. Others prohibit an employee from using any accrued time off to supplement pay during a furlough. Cities should carefully consider these options when drafting a furlough policy taking into account the city’s budget.


Is an employee’s health insurance coverage impacted during a furlough?


Whether an employee (and any dependents of the employee) who is on furlough will be eligible for continued group health insurance benefits with the city will depend on whether the health benefit plan documents allow benefits to continue when an employee fails to work the required number of hours specified in the plan documents. Some health benefit plans require that an employee work a specific number of hours (for example, 20 hours) in order to be eligible for health care benefits. A city considering a furlough should review the plan documents and any stop-loss policy to determine how coverage is affected during a furlough. If it is determined that continued coverage is unavailable for furloughed employees, a city may reach out to its health insurance carrier to determine if a waiver of any work hour threshold requirements is available for employees whose work hours are reduced as a result of a furlough. Cities who are members of TML Health should note that TML Health has temporarily waived its actively-at-work eligibility requirements until May 31, 2020, for employees whose hours are temporarily reduced due to COVID-19, provided certain conditions are met.


The loss of health care benefits that results from a temporary reduction in the number of hours worked due to a mandatory furlough is a qualifying event that triggers the Consolidated Omnibus Budget Reconciliation Act (COBRA). A city that employs 20 or more employees and that offers health plan coverage must follow COBRA requirements, including providing COBRA election notices to employees (and their eligible dependents) who have a qualifying event. The employee may elect to continue health coverage at the employee’s own expense, but a city also has the option of assisting its employees by paying a portion of the COBRA premiums. COBRA requirements apply even if the employee is furloughed for a short-time period such as a month.


Keep in mind that an employee who takes leave under the Family and Medical Leave Act (FMLA) or who takes emergency family and medical leave and emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA) is entitled to continued group health coverage under the city’s group health plan on the same terms as if the employee did not take leave.


Does an employee continue to accrue leave benefits (e.g. sick, vacation, personal time off) during a furlough?


There is no legal requirement for such employer-provided benefits to accrue during a furlough, unless otherwise provided in a local policy. For purposes of the FMLA and emergency family and medical leave under the FFCRA, any benefits that would be maintained while the employee is on other forms of leave (including paid leave if the employee substitutes accrued paid leave during FMLA leave) must be maintained while the employee is on FMLA leave or emergency family and medical leave.


May an employee scheduled to take Family and Medical Leave Act (FMLA) or Families First Coronavirus Relief Act (FFCRA) leave be furloughed?


Yes. However, no days associated with the furlough should count against the FMLA or FFCRA leave entitlement. Also, the request for FMLA leave cannot be used as a selection reason to decide who gets furloughed.


Is an employee who is placed on furlough able to collect unemployment insurance benefits?


An employee whose hours are reduced due to a mandatory furlough may be eligible for partial unemployment benefits. Such employees should contact the Texas Workforce Commission to determine eligibility. Additionally, the Commission is encouraging employers, as an alternative to layoffs, to participate in the voluntary Shared Work program, which allows employers to supplement their employees’ wages that are lost because of a reduction in work hours with partial unemployment benefits if certain conditions are met.