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Apr 20

April 20, 2020 TML Coronavirus Update #26

Posted on April 20, 2020 at 4:36 PM by TML Staff

Urgent Updates


Will the next round of stimulus funding provide money for cities?


It doesn’t look like it. Despite intense lobbying from TML, the National League of Cities, and individual cities, various media reported on Sunday (April 19) that Treasury Secretary Steve Mnuchin said there would instead be $300 billion for the Small Business Administration's Paycheck Protection Program, $50 billion for the Economic Injury Disaster Loan to private businesses, $75 billion for hospitals, and $25 billion for testing.


It was reported that White House staff needed more information to show that cities weren’t just looking for money to cover “past unfunded liabilities and otherwise bad fiscal management.” 


Other reports indicate that money for all cities might be available in a future package.


Can you summarize the governor’s orders that apply right now?


Yes. The following are in effect now:


-STAY HOME/WORK HOME: Stay home/work home, with exceptions for essential businesses and activities, is still in place (GA-14, expires April 30). Updated federal critical workers guidance released April 17. (Also see TDEM guidance.)


-BUSINESS OPENINGS: re-emphasizes stay home/work home (with exceptions), provides that any business may open only if it can provide pickup or delivery service and follows CDC guidelines (GA-16, begins April 24 and expires April 30), and directs the governor’s “Strike Force to Open Texas” to make recommendations on more openings by May 1 (GA-17, no expiration).


-SCHOOLS: schools shall remain closed until the end of the 2019-2020 school year (GA-16, expires April 30).


-NURSING HOMES: people shall not visit nursing homes, state supported living centers, assisted living facilities, or long term care facilities, unless to provide critical assistance (GA-16, expires April 30). 


-STATE PARKS: now open with requirements, including requiring visitors to wear face coverings, maintain a six-foot distance from individuals outside of their party, and prohibiting the gathering of groups larger than five (GA-17, no expiration).


-MEDICAL PROCEDURES: Health care professionals and facilities can begin to provide medical procedures that: (1) would not deplete the hospital capacity or personal protective equipment; or (2) if a licensed health care facility has certified in writing to the Texas Health and Human Services Commission both: (a) that it will reserve at least 25 percent of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and (b) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster (GA-15, begins April 21 and expires May 8).


On Monday April 27, the governor will announce additional ways to open Texas. In the next 10 days, the strike force will prepare a phased in strategy considering testing and hospital preparedness.


Does GA-16 supersede local orders?


Yes, at least partially. It provides verbatim that:


“This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order or allows gatherings prohibited by this executive order. I hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.”


What does the legalese above mean? 


Let’s break it down and see if we can make sense of it: 


-The first part provides that “This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order or allows gatherings prohibited by this executive order.”


That means a city may not define essential services differently than TDEM and the U.S. Department of Homeland Security. For example, can a city impose additional requirements on “retail to go” establishments authorized by the order? It’s possible, but which additional requirements we can’t definitively say.


-The governor then suspended Sections 418.1015(b) and 418.108 of the Texas Government Code (The Texas Disaster Act). Those sections are the ones that delegate authority to county judges and mayors to act locally during a disaster.


Section 418.1015(b) provides that: “An emergency management director [i.e., county judge or mayor] serves as the governor's designated agent in the administration and supervision of duties under this chapter. An emergency management director may exercise the powers granted to the governor under this chapter on an appropriate local scale.” Prior COVID-19 orders did not suspend this section.  Because of that, GA-16 appears to be more restrictive with respect to local actions.


Section 418.108 is much longer, so it’s not included here in its entirety. But it is the core authority for county judges and mayors to declare, and city councils and commissioners courts to extend, local states of disaster, including movement of persons and occupation of premises. It has many other provisions also, and the order is unclear as to which of them are being suspended.


This suspension would appear to mean that a county’s or city’s stay home/work home order is superseded by the order’s edict that “every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gathering and minimize in person contact with people who are not in the same household.”


-The governor then suspended “Chapter 81, Subchapter E, of the Texas Health and Safety Code, and any other relevant statutes.” Subchapter E relates to how the Department of State Health Services imposes disease protection controls. Presumably, he suspended that chapter to give the state more flexibility with disease control measures.


-Most importantly, the order states that the statutes above are suspended “to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.” 


That language is difficult to decipher. If local action is “consistent” with the order, but it can’t be “inconsistent,” what does that leave? It would appear to mean that a city should essentially be enforcing the governor’s order on a local scale. Any mayor or city council who wishes to impose additional local requirements should consult with their city attorney prior to doing so.


Also, the Texas attorney general previously issued a letter providing that: (1) state agencies and their contractors are not subject to local declarations; and (2) the governor’s orders are superior to cities and counties. And the Hood County attorney requested an attorney general opinion asking for clarification on the scope of local orders. From the tone of the request, it appears the county attorney thinks some local orders go beyond a city’s or county’s authority. The attorney general, citing litigation, declined to answer all of his questions except “May local governments commandeer private property under [Government Code Section] 418.108, when this authority is only vested in the governor under [Section] 418.017(c)?”


Finally, it’s unclear whether the governor is suspending Chapter 122 of the Health and Safety Code as “other relevant statutes.” That chapter contains broad authority for general law and home rule cities in relation to disease control.


In any case, neither the governor nor the attorney general have expressed much concern thus far over various local regulations, other than those relating to gun shops, churches, and golf courses.


Further 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.)


Last week, the attorney general issued an “informal letter of legal advice” indicating his opinion that “fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail.” In other words, the attorney general’s opinion is that, under state law, an otherwise healthy voter is not eligible to receive a ballot to vote early by mail just because the voter is concerned with possibly contracting COVID-19 by voting in-person at a polling place.


Shortly after the attorney general’s informal guidance was released, Travis County District Judge Tim Sulak took the opposite position. The judge ordered a temporary injunction preventing the Travis County clerk from rejecting any mail ballot applications received from registered voters who use the disability category of eligibility as a result of the COVID-19 pandemic as the justification for submitting the application. According to the judge, it was reasonable for plaintiffs “to conclude that voting in person while the virus that causes COVID-19 is still in general circulation presents a likelihood of injuring their health, and any voters without established immunity meet the plain language definition of disability thereby entitling them to a mailed ballot under Tex. Elec. Code § 82.002.”


It is possible, if not likely, that the judge’s order will be appealed. But unless and until an appellate court overturns the judge’s determination, the safest approach for future city elections will be for city election officials to accept applications for ballots to early vote by mail at face value and process them. The Secretary of State’s Elections Division will probably issue guidance as well.


What resources are available to help us with budget planning during the virus emergency?


Last Thursday (April 16), FEMA released the “Disaster Financial Management Guide” to support jurisdictions with establishing and implementing sound disaster financial management practices, which are critical for successful response and recovery. The guide takes an all-hazards approach and addresses a broad range of issues and contains concepts, principles, and resources applicable to the coronavirus (COVID-19) pandemic response environment.


The guide identifies the capabilities and activities necessary to prepare and successfully implement disaster financial management, while maintaining fiscal responsibility throughout response and recovery operations. This includes considerations and practices necessary to track, calculate, and justify the costs of an emergency; support local reimbursement reconciliation; avoid de-obligation of grant funding; and effectively fund and implement recovery projects and priorities.


The principles, concepts, and resources contained in the guide can support jurisdictions with identifying the resources needed to support their community, increase the efficiency of recovery efforts, and reduce the likelihood of audits and financial penalties for the jurisdiction.


Has the FCC taken any action related to broadband deployment during the COVID-19 crisis?


Yes. Federal Communications Commission Chairman Agit Pai has announced additional charges for the Disaster Response and Recovery Working Group of the Broadband Deployment Advisory Committee (BDAC). Specifically, the working group “will assist the BDAC in documenting the various strategies and solutions that stakeholders are developing and implementing in real time to address the deployment-related challenges presented by the coronavirus (COVID-19) pandemic.” Chairman Pai is adding additional positions to the working group, and the Texas Coalition of Cities for Utilities Issues and TML are recommending Kevin Pagan, McAllen city attorney and Texas City Attorneys Association board member, for an appointment to the group. Even if a city representative is appointed to the group, the FCC’s recent actions have heavily-favored industry deployment, especially in the area of small cell nodes and related equipment in city rights-of-way.


Has the Public Utility Commission released more information on utility disconnections?


Yes. The PUC released a new FAQ.  The following two questions, reprinted verbatim, are most relevant to cities:


-Does the PUC’s disconnection for non-payment directive apply to communities, municipalities, districts, and non-profit water supply corporations that provide retail water and sewer utility service?


No. The Commission’s order applies only to IOUs residing outside the corporate limits of a municipality because they have original jurisdiction over their retail water and sewer rates. The governing body or elected board of a county, municipality, district and non-profit water supply and sewer service corporation (WSC) is responsible for making its own business decisions regarding the disconnection of service for nonpayment during the COVID-19 crisis.


-What should counties, municipalities, districts, and non-profit WSCs do to respond to customers regarding water and sewer utility service in response to the COVID-19 crisis?


We encourage these entities to review the Commission’s order on the direction given to IOUs when making their own decision regarding disconnections for nonpayment during the COVID-19 crisis. Many of these entities have decided to not disconnect customers for non-payment during this time; however, we have not heard from all of them. If you are one of their customers, you are encouraged to contact them with your questions and concerns.


Has the Department of Labor provided guidance on the Uniformed Services Employment and Reemployment Rights Act (USERRA)?


Yes. The Department issued a fact sheet  reminding employers of the federal right to employment and reemployment for members of the National Guard or Reserves who are called to active duty in response to the COVID-19 pandemic. Specifically, the Department provides that an employer may not delay a service member’s reemployment out of concern that the service member’s service in a COVID-19 affected area may have affected him or her to COVID-19. If the employee satisfies the prerequisites to reemployment, the employee should be promptly reemployed in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service. Promptness generally depends on the length of time an individual was away, ranging from the next day after returning from duty, if the deployment was relatively short, to up to fourteen days in the case of a multi-year deployment. When reemploying a service member who might have been exposed to COVID-19, an employer must make reasonable efforts in order to qualify the returning employee for his or her proper reemployment position. This can include temporarily providing paid leave, remote work, or another position during a period of quarantine for an exposed reemployed service member or COVID-19 infected reemployed service member, before reemploying the individual into his or her proper reemployment position. 


While service in the Texas state military forces is not considered “service in the uniformed services” under USERRA, state law provides that individuals serving in the state military forces have the same protections in employment, reemployment, and retention in employment as provided by USERRA. Tex. Gov’t Code §431.202(d). This provision is limited to cities with five or more employees.


Does state law provide for paid time off for members of the Texas state military?


Yes. An employee of a city who is a member of the Texas military forces, a reserve component of the armed forces, or a member of a state or federally authorized urban search and rescue team is entitled to a paid leave of absence of up to 15 working days in a fiscal year for authorized training or duty. Tex. Gov’t Code §437.202(a). These individuals must be paid and cannot be subject to lost time, loss of an efficiency rating, or a loss of vacation, personal, or sick leave. Id.


Has the EEOC provided further guidance on the Americans with Disabilities Act as it relates to COVID-19?


Yes. On April 17, the EEOC provided additional guidance specifically addressing requests for reasonable accommodations and guidance on ADA compliance when employees return to work during the pandemic. With respect to reasonable accommodations, the guidance provides, among other things that:


-An employer may ask employees with disabilities to request accommodations that they believe they may need in the future when the workplace re-opens.


-If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, an employer may provide a temporary accommodation. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change, including short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives. Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities, such as a mental illness or disorder, exacerbated by the pandemic. Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted. 


-An employer does not have to provide a particular reasonable accommodation if it poses undue hardship (i.e. "significant difficulty or expense"). However, in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. An employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems. 


-Additionally, prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time - when considering other expenses - and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.


With respect to returning to work, an employer may:


-Make disability-related inquiries and conduct medical exams if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Direct threat is to be determined based on the best available objective medical evidence such as guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time. For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.  Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.


-An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if doing so is feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII. 


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


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