TML Coronavirus Update

May 06

[ARCHIVED] May 6, 2020 TML Coronavirus Update #38

The original item was published from May 6, 2020 1:18 PM to May 6, 2020 1:31 PM

 Urgent Updates
What can I do as mayor to advocate on behalf of my community to receive federal funds to combat COVID-19?
As we’ve reported in past updates, the federal government allocated $150 billion in federal aid to states and local governments over 500,000 in population.  Money was directly allocated to those cities and counties over 500,000 for the purposes of aiding in COVID-19 related expenses that were not budgeted for and incurred before the end of the year. What about the majority of cities that do not meet that population threshold but have real costs either directly related to fighting COVID-19 or losses in revenue due to distressed economic factors?  
The State of Texas will receive over $8 billion and our understanding is that the governor is working to establish a program for the distribution of a portion of those funds for cities under 500,000.
Please join mayors from across Texas in urging the governor to establish a program to provide funding to cities for combating COVID-19, including the ability to use those funds in the most flexible manner allowed. If you would like to have your name included in this letter to the governor, email JJ Rocha at by Thursday (May 7) at 10:00 a.m. with the mayor’s digital signature.
Did the governor issue a new executive order to follow up on the “clarifications and modifications” he made at his May 5 press conference?
Yes.  At a press conference yesterday (May 5), the governor announced “clarifications and modifications” regarding the executive orders issued last week. We summarized his verbal explanations in the May 5 update. As a follow-up to his verbal explanations, he issued written guidance in the form of a new executive order and a press release last night. (We’ve been told by the governor’s office that it is GA-21, but it’s not officially posted as such on his website. It’s referred to here for now as “the new executive order.”)
What does the new executive order provide?
As with previous executive orders, the newest order maintains the stay home/work home provision:
“In accordance with guidance from DSHS Commissioner Dr. Hellerstedt, and to achieve the goals established by the President to reduce the spread of COVID-19, every person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and minimize in-person contact with people who are not in the same household.”
(Emphasis added.) The highlighted language means that Texans should stay home/work home, unless (while following DSHS/CDC prevention guidelines):
-Accessing essential businesses (as defined by TDEM and the U.S. Department of Homeland Security).
-Accessing “re-opened services” as listed in the order. In addition to services already re-opened by previous order, the following are added to the list:
-Wedding venues and the services required to conduct weddings; provided, however, that for weddings held indoors other than at a church, congregation, or house of worship, the facility may operate at up to 25 percent of the total listed occupancy of the facility.
-Wedding reception services, for facilities that operate at up to 25 percent of the total listed occupancy of the facility; provided, however, that the occupancy limits do not apply to the outdoor areas of a wedding reception or to outdoor wedding receptions.
-Starting on Friday, May 8, 2020, the following are added to the list:
a. Cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade; provided, however, that all such salons, shops, and establishments must ensure at least six feet of social distancing between operating work stations.
b. Tanning salons; provided, however, that all such salons must ensure at least six feet of social distancing between operating work stations.
c. Swimming pools; provided, however, that (i) indoor swimming pools may operate at up to 25 percent of the total listed occupancy of the pool facility; (ii) outdoor swimming pools may operate at up to 25 percent of normal operating limits as determined by the pool operator; and (iii) local public swimming pools may so operate only if permitted by the local government.
-Starting on Monday, May 18, 2020, the following are added to the list:
a. Services provided by office workers in offices that operate at up to the greater of: (i) five individuals; or (ii) 25 percent of the total office workforce; provided, however, that the individuals maintain appropriate social distancing.
b. Manufacturing services, for facilities that operate at up to 25 percent of the total listed occupancy of the facility.
c. Gyms and exercise facilities and classes that operate at up to 25 percent of the total listed occupancy of the gym or exercise facility; provided, however, that locker rooms and shower facilities must remain closed, but restrooms may open.
In addition, the order allows (while following DSHS/CDC prevention guidelines):
-Attending religious services according to attorney general’s guidelines.
-Participating in “essential daily activities,” such as going to the grocery store or gas station; providing or obtaining other essential or reopened services; visiting swimming pools, parks, beaches, rivers, or lakes; hunting or fishing; or engaging in physical activity like jogging, bicycling, or other outdoor sports.
According to the governor’s May 5 press release, “these newly opened services are subject to recommended minimum standard health protocols outlined by DSHS. These protocols will be available on the Open Texas webpage.” 
Does the new executive order provide additional guidance as to occupancy limits?
Yes. In an attempt to alleviate confusion under prior orders, the new executive order expressly defines occupancy in this way: “the total listed occupancy limits described above refer to the maximum occupant load set by local or state law, but for purposes of this executive order, staff members are not included in determining operating levels except for non-essential manufacturing service providers and services provided by office workers.”
In addition, re-opened businesses may operate at up to 50 percent (as opposed to 25 percent) capacity in rural Texas counties that meet certain requirements and have certified that to the Department of State Health Services.  
What activities does the new executive order expressly prohibit?
The new executive order provides that:
-People shall avoid visiting bars, massage establishments, tattoo studios, piercing studios, sexually oriented businesses, or interactive amusement venues such as bowling alleys, video arcades, amusement parks, water parks, or splash pads, unless these enumerated establishments or venues are specifically added as a reopened service by proclamation or future executive order of the governor. 
-In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes, state supported living centers, assisted living facilities, or long-term care facilities unless to provide critical assistance as determined through guidance from the Texas Health and Human Services Commission (HHSC).
-In accordance with the Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom attendance by students and shall not recommence before the end of the 2019-2020 school year.
Does the new executive order supersede local orders?
Yes, according to the new executive order’s plain superseding language, which provides in part 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, allows gatherings prohibited by this executive order, or expands the list of essential services or the list or scope of reopened services as set forth in 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 in response to the COVID-19 disaster that are 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 that mean? Opinions vary substantially, but it would seem to indicate that a city’s order may not restrict how a business classified as essential or expressly re-opened by the order operates any more than the order (which incorporated DSHS/CDC prevention guidelines) does. And it would seem to indicate that a city order may not open a business that is not classified as essential, re-opened, or part of an essential activity.
Does the new executive order expressly supersede local mask/face covering mandates?
Yes. The new executive order provides that “Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.” 
Can a business (or a city as the owner of a facility) require a customer to adhere to additional hygiene measures?
Yes. The new executive order provides that “Nothing in this executive order or the DSHS minimum standards precludes requiring a customer wishing to obtain services to follow additional hygiene measures.” Presumably, that means a business could mandate the wearing of a mask/face covering to enter. 
The provision appears to be directed at private businesses and their customers, but it’s reasonable to assume that a city could rely on it to impose additional requirements for residents accessing city facilities, like bill payment, libraries, etc.  
Of course, one method of enforcement is probably criminal trespass, which could be preempted by the language in the question above stating that “no criminal penalty” may be imposed for the failure to wear a face covering. However, the prohibition on civil or criminal penalties does not seem to directly prohibit a city from denying service—acceptance of bill payment for example—to those not in compliance. The imprecision of the order’s language in this area will certainly be tested in practice.
What guidance relating to high school graduations has been released?
According to the governor’s press release yesterday (May 5):
“TEA Commissioner Morath also provided new guidance on class of 2020 graduation ceremonies for Texas school districts. The TEA is providing four different pathways for schools to celebrate their graduating seniors, and each district is at liberty to determine if any of these options best serve the needs and desires of their community:
-Completely virtual ceremonies that take place entirely online, with the use of videoconference or other technologies.
-Hybrid ceremonies, which consist of a compilation of videos of students being recognized in person as they celebrate graduation in small groups.
-Vehicle ceremonies, in which students and their families wait in their cars while other graduates are recognized one at time with their families alongside them.
-Outdoor in-person ceremonies, which are currently permitted for counties as follows: (1) between May 15 and May 31, an outdoor ceremony may take place in a rural county that has an attestation as described in the Governor’s Report to Open Texas that remains in effect 7 days prior to the ceremony; and (2) an outdoor ceremony may take place in any Texas county on or after June 1. 
Full details of the TEA's graduation ceremony guidance can be found on the TEA website.” 
Further Updates
What is the National League of Cities doing to advocate for city funding in Congress?
Yesterday (May 5), NLC launched the “Cities Are Essential” campaign to help secure money in the next relief package for cities, towns, and villages nationwide.
NLC is asking Congress for $500 billion in federal aid over the next two years to help cities and counties, regardless of size, respond to and recover from COVID-19.  The money would be split 50/50 with the counties, with cities receiving $125 billion in the first year.
To learn more about the campaign, you can read this blog from the NLC President.
Has the Treasury Department issued additional CARES Act funding guidance?
Yes. Late last night (May 5), the Treasury Department released an updated FAQ document for the Coronavirus Relief Fund. According to NLC, the most asked about FAQs include the following, which are reprinted verbatim:
-Are recipients required to use other federal funds or seek reimbursement under other federal programs before using Fund payments to satisfy eligible expenses? 
No. Recipients may use Fund payments for any expenses eligible under section 601(d) of the Social Security Act outlined in the Guidance. Fund payments are not required to be used as the source of funding of last resort. However, as noted below, recipients may not use payments from the Fund to cover expenditures for which they will receive reimbursement.
-The Guidance states that the Fund may support a "broad range of uses" including payroll expenses for several classes of employees whose services are "substantially dedicated to mitigating or responding to the COVID-19 public health emergency." What are some examples of types of covered employees? 
The Guidance provides examples of broad classes of employees whose payroll expenses would be eligible expenses under the Fund. These classes of employees include public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency. Payroll and benefit costs associated with public employees who could have been furloughed or otherwise laid off but who were instead repurposed to perform previously unbudgeted functions substantially dedicated to mitigating or responding to the COVID-19 public health emergency are also covered. Other eligible expenditures include payroll and benefit costs of educational support staff or faculty responsible for developing online learning capabilities necessary to continue educational instruction in response to COVID-19-related school closures. Please see the Guidance for a discussion of what is meant by an expense that was not accounted for in the budget most recently approved as of March 27, 2020.
-Would providing a consumer grant program to prevent eviction and assist in preventing homelessness be considered an eligible expense? 
Yes, assuming that the recipient considers the grants to be a necessary expense incurred due to the COVID-19 public health emergency and the grants meet the other requirements for the use of Fund payments under section 601(d) of the Social Security Act outlined in the Guidance. As a general matter, providing assistance to recipients to enable them to meet property tax requirements would not be an eligible use of funds, but exceptions may be made in the case of assistance designed to prevent foreclosures.
-May recipients create a "payroll support program" for public employees? 
Use of payments from the Fund to cover payroll or benefits expenses of public employees are limited to those employees whose work duties are substantially dedicated to mitigating or responding to the COVID-19 public health emergency.
-May recipients use Fund payments to provide emergency financial assistance to individuals and families directly impacted by a loss of income due to the COVID-19 public health emergency? 
Yes, if a government determines such assistance to be a necessary expenditure. Such assistance could include, for example, a program to assist individuals with payment of overdue rent or mortgage payments to avoid eviction or foreclosure or unforeseen financial costs for funerals and other emergency individual needs. Such assistance should be structured in a manner to ensure as much as possible, within the realm of what is administratively feasible, that such assistance is necessary.
-May Fund payments be used to replace foregone utility fees? If not, can Fund payments be used as a direct subsidy payment to all utility account holders? 
Fund payments may not be used for government revenue replacement, including the replacement of unpaid utility fees. Fund payments may be used for subsidy payments to electricity account holders to the extent that the subsidy payments are deemed by the recipient to be necessary expenditures incurred due to the COVID-19 public health emergency and meet the other criteria of section 601(d) of the Social Security Act outlined in the Guidance. For example, if determined to be a necessary expenditure, a government could provide grants to individuals facing economic hardship to allow them to pay their utility fees and thereby continue to receive essential services.
What are the governor’s “surge response teams?”
During the governor’s May 5 press conference, TDEM Chief Kidd and Health and Human Services Commissioner Wilson provided details on the newly formed “Surge Response Teams.”
According to the governor’s press release:
“These teams are led by TDEM and HHSC and include representatives from the Texas Military Department, DSHS, the Texas Emergency Medical Task Force, and BCFS Health and Human Services. Surge Response Teams will serve nursing homes, prisons, packing pants, and other facilities that experience flare ups of COVID-19 by providing personal protective equipment, testing supplies, onsite staffing, and assessment assistance. These teams will also work with local officials to establish health and social distancing standards to contain these flare ups. Several Surge Response Teams have already been deployed to locations across the state.”
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject here.