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Urgent Updates
Will there be an Update tomorrow?
Only if we need to convey urgent information.
What’s the latest on the Gulf storms?
Based on very preliminary reports, officials in Southeast Texas
are “sounding optimistic that their corner of the state had escaped the worst
of the hurricane's impact.” Even so, more than 100,000 Texans are
without power in the East Texas counties of Jefferson, Orange, and Hardin.
If you need hurricane-related assistance, the Texas Municipal
League Intergovernmental Risk Pool has resources available for cities, including a link to the
main TML’s emergency management web page. If you need further
TML IRP assistance, please contact one of the following:
-Mike Rains 512-491-2342
-David Nix 512-491-2347
-David Goldston 512-491-2426
City officials who need immediate assistance from TML legal
can contact Scott Houston, TML general counsel, at gencounsel@tml.org or
by phone at 512-231-7464.
What’s the latest on testing results in Texas?
According to The Texas Tribune, after state officials this month
“disclosed that hundreds of thousands of coronavirus tests had not been
previously reported — a backlog that has distorted metrics used
to gauge the toll of the pandemic — the governor said that the
current data is ‘far more accurate than what we had last month.’”
The disclosure of the backlog, reported the Tribune,
was the latest in a string of data problems that have plagued the
state’s public accounting of the pandemic and comes as schools and
universities prepared to resume instruction for the fall term.
A spokesperson for the Department of State Health Services
said positive tests revealed in the backlog show there might have been more
infections in July than state officials previously knew about, but the
“additional cases would not have changed the overall trend or the
recommendations for the public.”
Meanwhile, the state’s positivity rate — the rolling
average of people who test positive — swung wildly this month as backlogged
tests were added, soaring to 24.5 percent on August 11 and plummeting to 10.8
percent a week later.
Abbott, who frequently cites the metric to explain his
decision-making, has said anything above a 10 percent would raise a “warning
flag,” while a sustained rate below that could prompt him to loosen
restrictions.
(The article summarized above includes conversations with
epidemiologists and health experts about the backlogged tests and what the
state can expect with schools and universities resuming online or in-person
instruction and the Labor Day holiday approaching.)
What is the Safeguarding America’s First Responders Act
of 2020?
On August 14, 2020, the President signed into law the Safeguarding America’s First Responders Act of 2020,
which creates a presumption of eligibility for federal death and disability
benefits. The presumption flows from the Public Safety Officers Benefits Program, which provides benefits for public safety officers (PSOs) who contract
COVID-19 in the line of duty.
Eligible PSOs include law enforcement officers, firefighters,
chaplains, certain emergency management personnel, and EMS personnel,
including rescue squads, ambulance drivers, paramedics, and EMTs.
Specifically, PSOs are eligible for death benefits if: (1) the
officer engaged in a line of duty action or activity between January 1, 2020,
and December 31, 2021; (2) the officer was diagnosed with COVID-19 during the
45-day period beginning on the last day of duty of the officer; and (3)
evidence indicates that the officer has COVID-19 (or complications therefrom)
at the time of the officer’s death.
Similarly, PSOs are eligible for disability benefits if: (1)
the officer engaged in a line of duty action or activity between January 1,
2020, and December 31, 2021; and (2) the officer was diagnosed with COVID-19
during the 45-day period beginning on the last day of duty of the officer.
Further Updates
Has a court ruled on the validity of the Department of Labor
regulations implementing the Families First Coronavirus Response Act (FFCRA)?
Yes. On August 3, 2020, a federal court in New York, in
response to a lawsuit filed by the State of New York, struck down certain provisions of the DOL’s regulations implementing
the FFCRA.
What does this decision mean for employers, including cities,
in Texas? In its lawsuit, the State of New York did not ask that the ruling
be applied nationwide, and the court did not issue a nationwide
injunction. As such, it’s likely the decision is only instructive to
those who are outside the court’s jurisdiction (e.g., Texas employers,
including cities).
Specifically, the court:
-Struck down the “work-availability” requirement, which
excludes employees whose employers do not have work for them from qualifying
for paid benefits under the FFCRA. This means that eligible employees who are
on furlough or are unable to temporarily work due to a site closure may
qualify for paid FFCRA leave.
-Determined that the DOL’s definition of healthcare provider
(who may be excluded from receiving benefits) was too broad because it did
not tie the definition to the duties of the employee.
-Invalidated the DOL’s requirement that employer consent is
required before an employee can intermittently (i.e. in separate periods of
time, rather than one continuous period) take emergency paid sick leave for
certain qualifying reasons, as well as emergency family and medical
leave. However, the court upheld the DOL’s rule that prohibits the use
of intermittent emergency paid sick leave where there is a high risk that an
employee will spread COVID-19 to other employees.
-Concluded that the DOL’s requirement that an employee furnish
documentation before taking leave was an invalid exercise of its authority,
but upheld the requirement that an employee provide documentation to support
the employee’s need for leave.
As of today (August 27), the DOL has neither appealed the
decision nor amended its regulations to comply with the court’s
decision. We will continue to monitor this issue and provide updates
accordingly.
What guidance has the Department of Labor issued about
tracking teleworking employees’ hours of work?
On August 24, 2020, the DOL issued Field Assistance Bulletin No. 2020-5. The bulletin
requires, in accordance with the Fair Labor Standards Act (FLSA), requires
employers to track the number of hours an employee works, regardless of
whether the employee is teleworking or working remotely. It applies only
to non-exempt employees (i.e. generally those who are eligible for overtime
pay).
The FLSA requires an employer to pay its employees for all
hours worked, including work the employer did not request but nonetheless
“suffered or permitted,” including work performed at home. This means,
if the employer knows or has reason to believe that work is being performed,
the time worked must be counted as hours worked. Additionally, if the
employer has, through reasonable diligence (as discussed in the bulletin),
acquired knowledge of additional unscheduled hours, such work hours must be
counted as hours worked.
Of course, a city as employer can avoid having to determine
compensable hours by implementing a policy that prohibits unauthorized
overtime and/or discipline employees for violating such policy.
Where can I find archived issues of the TML Coronavirus
Updates?
TML Coronavirus Updates are archived by date here and by subject here.
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