Correction in red.
Has the State of Texas declared a public health disaster?
Yes. The Texas Department of State Health Services has determined that, as of March 19, 2020, COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code.
What action has Governor Abbott taken in response to the declaration of public health disaster?
- every person in Texas shall avoid social gatherings in groups of more than 10 people;
- people shall avoid eating or drinking in bars, restaurants, and food courts, or visiting gyms or massage parlors; however, the use of drive-thru, pickup, or delivery options are allowed and highly encouraged;
- people shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance; and
- schools shall temporarily close.
What is the duration of the Governor's executive order?
The executive order is for a limited duration. For now, the order is effective 11:59 p.m. on March 20 and continues until 11:59 p.m. on April 3, 2020. The restrictions could be extended in the future.
Does this mean all businesses in our city must shut down?
No, this is not a shelter in place order. The Governor's order does not prohibit people from visiting a variety of places, including grocery stores, gas stations, parks, and banks, so long as necessary precautions are maintained to reduce the transmission of COVID-19. Businesses will continue to provide essential services.
Does the governor's order require that we close all city operations?
No. All critical infrastructure remains operational, domestic travel remains unrestricted, and governmental entities will continue providing essential services.
Is the Governor providing additional information about Executive Order GA-08?
Nexstar Broadcasting will host a live virtual town hall meeting with Governor Abbott tonight at 7:00 p.m. CT. The one-hour virtual town hall will air exclusively on 14 Nexstar stations across the state. Click here to find a way to view the meeting.
The governor will address the statewide response to the current coronavirus outbreak and will be joined by top state government officials from the departments of health, infectious diseases, education, and emergency management.
The town hall will open with Governor Abbott providing the latest information about the state's response to the coronavirus crisis, followed by a 15-minute question and answer session between the Governor and the other state officials. The broadcast will then allow approximately 45 minutes of questions submitted by viewers around the state.
Viewers can pose a question to Governor Abbott or any of the show's guests via a variety of social media platforms using the hashtag #AskAbbott. Preference will be given to those questions submitted as videos rather than texts.
What is the Families First Coronavirus Response Act?
The Families First Coronavirus Response Act (the "Act") is a federal law that was passed by Congress on March 18, 2020, in response to COVID-19. The Act creates, among other things, Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The Act provides payroll tax credits to employers to cover the wages paid to employees under the Act, but state and local governments are not eligible to claim these credits. The law goes into effect on April 2, 2020, and the Department of Labor is required to issue guidelines within 15 days to assist employers in calculating the amount of emergency paid sick time.
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
The Emergency Family and Medical Leave Expansion Act temporarily amends and expands the Family and Medical Leave Act until December 31, 2020, to provide paid job-protected leave to both a full-time and a part-time employee who has been employed for at least 30 calendar days. The law applies to any city regardless of size.
What is an employee entitled to?
An employee is eligible for paid leave if the employee is unable to work or telework due to a need for leave to care for the employee's child if the child's school or child care provider has been closed, or the child care provider is unavailable, due to COVID-19.
Eligible full-time employees and part-time employees are entitled to 12 weeks of job-protected leave. The first 10 days of the 12-weeks job-protected leave shall be unpaid, but an employee may elect to substitute any accrued paid time off (including vacation, personal, medical or sick leave) offered to the employee by the city for the unpaid leave. However, the employee would still be eligible for emergency paid sick leave pursuant to the Emergency Paid Sick Leave Act at two-thirds the employee’s regular rate of pay that would cover the first 10 days (see explanation under Emergency Paid Sick Leave Act, below). Subsequently, a city shall provide paid leave in an amount that is not less than two-thirds of an employee's regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work, up to $200 per day and $10,000 in the aggregate. For part-time employees whose schedules vary from week to week such that a city is unable to determine with certainty the number of hours the employee would have worked if the employee had not taken leave, the city shall use a number equal to the average number of hours that the employee was scheduled per day over the six-month period before the employee took leave, including any leave hours that the employee may have previously taken. If the employee did not work over such time-period, the city shall use the average number of hours of day the city, at the time of hire, reasonably expected to normally schedule the employee.
Upon expiration of the 12-week leave period, an eligible employee who took leave shall, on return from such leave, be entitled to be: (1) restored to the position the employee held when the leave commenced; or (2) restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. These requirements do not apply to a city that employs less than 25 employees if: (1) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in the operating conditions of the city that affect employment and are caused by COVID-19; (2) the city took reasonable efforts to restore the employee to an equivalent position with equivalent employment benefits; and (3) if the reasonable efforts fail, the city makes reasonable efforts to contact the employee within a one-year period (from date on which qualifying need for leave ended or the date the 12-weeks leave ends) if an equivalent position becomes available.
What notice is an eligible employee required to provide?
When the need for leave is foreseeable, an eligible employee shall provide the employer notice of leave as is practicable.
Are employees who are emergency providers exempt?
A city that employs an emergency responder may elect to not provide such employee with paid family and medical leave.
EMERGENCY PAID SICK LEAVE ACT
Who is eligible for emergency paid sick time?
A city that employs at least one employee is required to provide emergency paid sick leave to each full-time or part-time employee, regardless of how long the employee has been employed by the city, if the employee is unable to work or telework because of one or more of the following reasons, if related to COVID-19:
- The employee is subject to a federal, state, or local quarantine or isolation order;
- The employee has been advised by a health care provider to self-quarantine;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order or has been advised to self-quarantine;
- The employee is caring for a child of the employee if the child's school or childcare provider has been closed or the childcare provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Labor.
What is an employee entitled to receive?
Eligible full-time employees are entitled to 80 hours of emergency paid sick time at the employee's regular rate of pay (up to $511 per day and $5,110 in total) to self-quarantine, seek a diagnosis or preventative care, or receive treatment for COVID-19. Eligible part-time employees are entitled to emergency paid sick leave for the same reasons at their regularly rate of pay (up to $511 per day or $5,110 in total) for the number of hours equal to the number of hours that such employee works, on average, over a two-week period.
Additionally, full-time employees are entitled to 80 hours of emergency paid sick time at two-thirds the employee's regular rate of pay (up to $200 per day and $2,000 in total) to: (1) care for an individual who is subject to a quarantine or isolation order; (2) to care for a child whose school is closed or child care provider is closed or unavailable, or (3) if the person is experience any substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Labor.
Similarly, a part-time employee is entitled to emergency paid sick time for the same reasons at two-thirds of the employee's regular rate of pay (up to $200 per day and $2,000 in total) for the number of hours equal to the number of hours that such employee works, on average, over a two-week period. For part-time employees whose schedules vary from week to week, such that a city is unable to determine with certainty the number of hours the employee would have worked if the employee has not taken leave, the city shall use a number equal to the average number of hours that the employee was scheduled per day over the 6-month period before the employee took leave, including any leave hours that the employee may have previously taken. If the employee did not work over such period, the city shall use the average number of hours of day the city reasonably expected would normally be scheduled for the employee at the time of hire.
A city may not require an employee to use other paid leave provided to the employee by the city before the employee can use emergency paid sick time. Additionally, a city cannot require, as a condition of providing emergency paid sick time, that the employee needing leave search for or find a replacement employee to cover the hours during which the employee is using paid sick time. Also, emergency paid sick leave cannot be carried over from one year to the next.
What notice is required?
After the first workday, or portion thereof, an employee receives emergency paid sick time, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.
Are emergency responders exempt?
The Department of Labor has the authority to issue regulations to exclude certain emergency responders from the requirement of the law, including by allowing employers of such employees to opt out.
What notice is required?
An employer is required to post and keep posted in conspicuous places on the premises of the employer where notices to employees are customarily posted. A copy of the notice to be posted should be available from the Department of Labor by March 25, 2020.
What other legal obligations apply?
An employer is prohibited from discriminating and/or retaliating against an employee who takes emergency paid sick leave, files a complaint or testifies in any proceeding to enforcing the requirements of this law. An employer who violates the provisions of the emergency paid sick leave shall be considered to have failed to pay minimum wage in violation of the Fair Labor Standards Act, and is subject to penalties. Additionally, the provisions of the paid sick leave act do not diminish the rights or benefits that an employee is entitled to under any other state or local law, collective bargaining agreement or existing employer policy.
May a city temporarily suspend the requirements of the Texas Public Information Act during a disaster?
A governmental body that is currently impacted by a catastrophe that interferes with the ability of the governmental body to comply with the requirements of the Texas Public Information Act (Act) may suspend the applicability of the requirements of the Act. For purposes of the suspension of the Act, a catastrophe is defined as a condition or occurrence that interferes with the ability of a governmental body to comply with the requirements of the Act, including an epidemic. Tex. Gov't Code §552.233(a). A governmental body that elects to suspend the requirements of the Texas Public Information Act must provide notice to the office of the attorney general that the governmental body is currently impacted by a catastrophe and has elected to suspend the applicability of the Act during the suspension period and the extension period. Id. §552.233(c). Notice must be provided in a form promulgated by the attorney general. Id.
For how long can the requirements of the Act be suspended?
The governmental body may suspend the applicability of the requirements of the Act for an initial suspension period that does not exceed seven consecutive days. Id. §552.233(d). The initial suspension period must occur during the period that: (1) begins not earlier than the second day before the date the governmental body submits the notice to the office of the attorney general; and (2) ends not later than the seventh day after the governmental body submits the notice.
Id. A governmental body may extend an initial suspension period, one time, if the governing body determines that the governing body is still impacted by the catastrophe on which the initial suspension period was based. Id. §552.233(e). The initial suspension period may be extended for not more than seven consecutive days that begin on the day following the day the initial suspension period ends. Id.
Where and for how long must a suspension notice be posted?
A city that suspends the applicability of the Act must provide notice to the public of the suspension in a place that is readily accessible to the public and in each other location the governmental body is required to post notice of a meeting under the Open Meetings Act. Id. §552.233(f). This means that the notice must be posted on a physical or electronic bulletin board at a place convenient to the public in city hall (Id. §551.050(b)); on a city's website if the city maintains an internet website (Id. §§551.043(b), 551.056(b)); and, if the city has a population of 48,000 or more, the agenda of the emergency meeting must be concurrently posted on the city's internet website (Id. §551.056(c)). The notice of suspension must be maintained during the suspension period. Id. §552.233(f).
What happens to requests for public information that are received before or during a suspension period(s)?
The requirements of the Act related to a request for public information that was received before the initial suspension period begins are tolled until the first business day after the date the suspension period ends. Tex. Gov't Code §552.233(h). A request that is received during a suspension period is considered to have been received by the city on the first business day after the date the suspension period ends. Id. §552.233(g).
Does the governor's recent COVID-19 disaster declaration potentially impact some cities' tax rate setting procedures in 2020 and 2021 due to new language passed in Senate Bill 2?
Yes. The following questions and answers address only the disaster-related provisions of the bill. The League has also prepared a detailed explanation
of S.B. 2 in general.
Does S.B. 2 make any adjustments to the voter-approval tax rate calculation in a city located in a disaster area?
Yes. Under a statute added by S.B. 2, a city council may direct its designated officer or employee to calculate the voter-approval tax rate in the manner provided for a special taxing unit (an 8 percent rate, instead of a 3.5 percent rate) if any part of the city is located in an area declared a disaster area during the current tax year by the governor or by the president of the United States. Tex. Tax Code § 26.04(c-1). The designated officer or employee shall continue calculating the voter-approval tax rate using 8 percent instead of 3.5 percent until the earlier of:
- the second tax year in which the total taxable value of property in the city exceeds the total taxable value of property taxable by the city on January 1st of the tax year in which the disaster occurred; or
- the third tax year after the tax year in which the disaster occurred.
How does the governor's recent COVID-19 disaster declaration affect the property tax rate adoption process for cities?
The governor's March 13 proclamation declaring a state of disaster in every Texas county due to COVID-19, likely along with the president's proclamation issued the same day, triggered the ability of a city council to calculate its voter-approval property tax rate using an 8 percent multiplier instead of the 3.5 percent multiplier generally required under S.B. 2. Essentially, this means that a city using this disaster exemption to calculate the voter-approval tax rate will be using the same basic formula as the city used for the rollback tax rate prior to S.B. 2's passage and effective date.
As mentioned above, a city using this disaster provision will calculate an 8 percent voter-approval rate for at least two years, and possibly three, depending on how the taxable value of property in the city compares to the taxable value prior to the COVID-19 pandemic on January 1, 2020.
Is a city's ability to use an 8 percent voter-approval rate mandatory?
No, the new voter-approval rate calculation is not mandatory. S.B. 2 gives a city council located in a disaster area the discretion to direct its designated officer or employee to calculate an 8 percent voter-approval tax rate. As always, the city council retains the ability to adopt a rate different than the voter-approval tax rate, whether lower or higher. If the city adopts a rate exceeding the 8 percent voter-approval tax rate, the city will be required to go to the voters at the November election for approval.
A city council wishing to direct the designated officer or employee to calculate an 8 percent voter-approval tax rate should take formal action to do so in order to ensure a record of the council's decision on the matter and to limit any confusion on the part of the person making the calculation.
To be clear, the League takes no position on whether a city should or should not use the higher voter-approval rate calculation allowable in a disaster. Each city is different and will need to make that decision based upon any number of factors, such as the impact of the COVID-19 virus on other sources of local revenue, like sales taxes, the amount of city expenditures made in response to the emergency, as well as the ability and willingness of local taxpayers to potentially pay a higher tax rate.
If a city uses the 8 percent voter-approval rate calculation, when must it adopt its tax rate?
Following the passage of S.B. 2, a city adopting a tax rate exceeding the voter-approval tax rate is required to adopt that tax rate by no later than the 71st day before the November uniform election date. Tex. Tax Code § 26.05(a). In 2020, this date is August 24th.
This statute applies the same to a city that has elected to direct the designated officer or employee to calculate an 8 percent tax rate. Therefore, if a city uses the disaster exemption for calculating the 8 percent voter-approval rate, it must only adopt its tax rate by the August 24th deadline if the city is adopting a rate exceeding the 8 percent voter-approval tax rate. Any rate equal to or less than the 8 percent voter-approval rate may be adopted before the later of September 30th or the 60th day after the certified appraisal roll is received by the city. Id.
In what other ways might the governor's disaster declaration impact tax rate adoption?
Another provision imposed by S.B. 2 pertaining to disasters gives cities the ability to avoid an automatic tax rate approval election following certain disasters. When an increased expenditure of money by a city is necessary to respond to a disaster, including a tornado, hurricane, flood, wildfire, or other calamity, but not including a drought, that impacted the city and the governor has declared any part of the city as a disaster area, an automatic election is not required to approve the tax rate adopted by the governing body for the year following the year in which the disaster occurs. Tax Code § 26.07(b).
This provision was also triggered by the governor's recent disaster declaration. However, it will not impact a city's tax rate setting process this year because it is only effective in the "year following the year in which the disaster occurs." When cities set their 2021 property tax rates next year, this statute will eliminate the automatic election requirement if tax rates exceed the voter-approval tax rate (or the de minimis tax rate for most cities under 30,000 population). Note, however, that this exception only applies if the city makes an increased expenditure of money necessary to respond to the disaster.
Do the disaster exemptions adopted in S.B. 2 impact the new notice and transparency requirements?
No. All of the new notice provisions in S.B. 2 apply the same to cities regardless of the disaster declaration. This includes the applicable requirements related to the property tax database maintained by the county appraisal district, posting requirements for the city website, and requirements to provide new notices related to the tax rate hearing and adoption of the tax rate.
Where can I find archived editions of this and previous TML Coronavirus Updates?
All TML Coronavirus Updates: Questions and Answers are archived online at https://www.tml.org/Blog.aspx?CID=2.