Urgent Updates

 

Has the Secretary of State issued further guidance relating to elections scheduled for the May uniform date?

 

Yes. The Secretary of State’s Elections Division issued guidance yesterday that interprets the governor’s most recent executive order as, for all practical purposes, mandating that May elections be postponed. That guidance is printed verbatim here:

 

Dear Election Officials:

 

We have continued to receive questions regarding the recent proclamations by the Governor related to elections and COVID-19.  We are providing some additional guidance below.

 

1. Executive Order GA 14: Governor Abbott’s March 31, 2020 executive order includes, but is not limited to, the following items.  It: (1) extends social distancing guidelines through April 30th, (2) defines essential services, and (3) extends school closures across the state through May 4, 2020.  If you haven’t already moved your May 2nd election, you must take action to do so immediately! This most recent executive order will prevent you from securing polling places, recruiting election workers, and allowing voters a safe way to exercise their right to vote.  If you don’t move your May 2nd election, you are subjecting voters to health risks and potential criminal violations.  Failure to postpone your election will put your election at severe risk for an election contest.   For procedures related to postponing your election, see Advisory 2020-12. (Please note, that while Elections Personnel have been included in the federal government’s advisory on essential critical infrastructure workers, this does not include voters.)

 

2. Cities impacted by Article XI, Section 11, Texas Constitution: 

a. The Governor’s executive order makes it clear that you must take action to move your election, even if your city is holding a special election to fill a vacancy due to the requirements prescribed in Article XI, Section 11 of the Texas Constitution.  While the executive order does not suspend the Texas Constitution’s requirements to hold your election within 120 days of the vacancy, you should consult with your city attorney about the proper way to handle a postponement of this type of election.  

b. If you opt to move your election in response to this public health crisis, and to do so safely would result in the election occurring outside of the constitutionally prescribed 120 day period, please direct your attorney to review Attorney General Opinion No. JC-0318, as you may be required to hold your election on the November 2020 uniform election date.

c. Runoff Elections being held for Article XI, Section 11, Texas Constitution City Elections - These situations can very fact specific. We recommend you contact our office for specific guidance on your situation.

 

3. Special Elections Regarding the Continuation of a Sales Tax:  If you have a special election scheduled for May 2, 2020 on the question of the continuation of a sales tax that cannot be rescheduled for November 3, 2020 because the tax will expire before then, please contact the Comptroller’s office regarding the expiration of your sales tax. If you are unable to receive an extension from the Comptroller’s office regarding your sales tax, please contact the SOS for additional assistance.

 

4. Options Other Than November 3, 2020:  The Governor’s proclamation allowing a postponement only authorized a move to November 3, 2020. There is no authority for a local political subdivision, on its own order, to move an election to any other date. If an entity would like to move to a date other than November 3, 2020, there are likely only two ways to do so:

a. Emergency Election under Section 41.0011(b) of the Texas Election Code: A local political subdivision can request permission from the Governor to allow the political subdivision to order a special election on a nonuniform election date. Please note that this only applies to special elections and not general elections.

b. Court Order for Nonuniform Election Date:  As there are no other options outside of the Governor’s authorization to postpone the election and the option under Section 41.0011 of the Texas Election Code, a political subdivision that wishes to hold its election on a date other than November 3, 2020 could try to seek court order for an alternative date.

 

5. Notice Requirements:   Any entities that are exercising the authority to postpone their election date must provide the following notice:

a. Notice to Voters: The entity should post notice on the entity’s website and alert any local media organizations regarding this change to their election date.

b. Notice to County Election Officer:  The entity must also provide notice to their county election officer regarding this change, as the county is required to post the entity’s notice of election on the county’s website no later than the 60th day before the date of the election under Election Code 4.008.  

c. Posted Notice at Polling Locations:  If it’s possible to post notice at the polling locations that would have been used for the elections, we would recommend doing so.  However, your ability to do so may be limited due to the stay-at-home orders that are in place.  Please do not put your workers at risk by posting a physical notice. The most important thing is to update local media and update your website.

d. Notice to SOS:  When you take action to postpone your elections, please inform us of the action taken. You may do so at elections@sos.texas.gov.

 

Please let us know if you have any questions or concerns.   

 

Keith Ingram

Director, Elections Division

Office of the Secretary of State

800-252-VOTE(8683)

 

Has the Secretary of State issued other guidance relating to conducting elections in November?

 

Yes, the Elections Division has issued what they say will be the first of several advisory opinions relating to various facets of conducting elections in light of the virus. It includes such items as cleaning voting machines, curbside voting, mail in ballots, etc. City elections personnel should carefully review the advisory.

 

What action has the governor taken to increase the emergency medical services workforce?

 

Yesterday (April 2), the governor issued a press release stating that he has suspended certain regulations to increase the EMS workforce. The release is reprinted verbatim here:

 

“Governor Greg Abbott today suspended regulations to increase the amount of Emergency Medical Services (EMS) workers and first responders in Texas during the state's response to COVID-19. Under the Governor's direction, local medical directors for licensed EMS providers can permit individuals who are qualified, though not formally certified, to provide critical emergency response services for patients treated and transported by the EMS provider.

 

The Governor has also suspended certain skills testing requirements for EMS personnel in Texas and for out of state Advanced Emergency Medical Technicians seeking reciprocity in Texas so that these individuals who are qualified, but currently unable to take the skills test, are able to provide essential EMS services. Additionally, Governor Abbott has also suspended regulations to allow first responder organizations to delay submission on their renewal application and completion requirements for licensure. 

 

‘Our EMS providers and first responders play a critical role in the front-line fight against COVID-19, and these waivers remove barriers that could otherwise prevent a much-needed availability of essential EMS workers and first responders in our communities,’ said Governor Abbott. ‘The State of Texas is committed to supporting the EMS and first responder workforce and maximizing the number of available response services for Texans.’ 

 

As of now, no accompanying proclamation is available.

 

Further Updates

 

What notice and documentation must an employee provide in support of leave under the Families First Coronavirus Response Act?

 

An employee is required to provide notice of leave only after the first workday (or portion thereof) for which the employee takes emergency paid sick leave or emergency family and medical leave. 29 C.F.R. §826.90(b). A city may adopt reasonable notice procedures for an employee to follow, after the first workday (or portion thereof), including requiring oral notice and sufficient information for an employer to determine whether the requested leave is covered; requiring the employee comply with the city’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances; and allowing an employee’s spouse, adult family member or other responsible party to provide notice to the city if the employee is unavailable. Id. §§826.90(a), (b), (c). A city may encourage, but not require, that an employee provide notice of leave in advance or as soon as practicable (except that an employee who is taking leave to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 reasons, must provide notice of such leave as soon as practicable if the need for said leave was foreseeable). Id. §826.90(a). If an employee fails to provide the proper notice, the city should give the employee notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave. Id.

 

An employee is required to provide the city documentation in support of emergency paid sick leave or emergency family and medical leave. Such documentation must include a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement that the employee is unable to work or telework because of the COVID-19 qualifying reason. Id. §826.100(a). An employee is required to provide additional documentation depending on the type of COVID-19 qualifying reason for leave. An employee requesting emergency paid sick leave because the employee is subject to a government quarantine or isolation order must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. Id. §826.100(b). An employee requesting emergency paid sick leave to self-quarantine upon the advise of a health care provider must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. Id. §826.100(c). An employee requesting paid sick leave to care for an individual must provide either the name of: (1) the government entity that issued the quarantine or isolation order to which the individual is subject; or (2) the name of the health care provider who advised the individual to self-quarantine, as applicable. Id. §826.100(d). An employee requesting to take emergency paid sick leave or emergency family and medical leave to care for his or her child must provide the following information: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave. Id. §826.100(e). 

 

An employer is required to retain all documentation provided pursuant to a request for leave for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years. Id. §826.140.

 

For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply. See 29 CFR 825.306.

 

May an employee take emergency paid sick leave and/or emergency family and medical leave intermittently?

 

A city may, but is not required to, allow an employee who teleworks to take emergency paid sick leave and/or emergency family and medical leave intermittently (i.e. in separate periods of time, rather than one continuous period). Id. §826.50(c). Similarly, an employee who reports to a work-site may, with the city’s permission, take such leave intermittently only if the leave is to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. Id. §826.50(b)(1). The agreement to allow an employee to take leave intermittently need not be in writing, but there must be a clear and mutual understanding that the employee may take the leave intermittently. Id. §826.50(a). Additionally, both the city and the employee must agree on the increments in time in which leave may be taken.

 

In contrast, an employee who reports to a work-site is prohibited from taking emergency paid sick leave intermittently, notwithstanding any agreement between the city and the employee, if the leave is taken because the employee: (1) is subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) is caring for an individual who is subject to an order described in (1), above, or has been advised as described in (2), above; or (4) is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services. Id. §826.50(b)(2). Once such employee begins taking emergency paid sick leave for one or more of the reasons set forth above, they must use the leave continuously until either the employee uses the full amount of leave or no longer has a qualifying reason for taking the leave. Id. The Department of Labor has determined that in these instances, taking intermittent leave poses an unacceptably high-risk that the employee might spread COVID-19 to other employees when reporting to the employee’s worksite.

 

May a city use an electronic signature for the mayor to sign or the city secretary to attest an ordinance?

 

Yes. The Uniform Electronic Transaction Act (UETA), Business and Commerce Code, Chapter 322, is the Texas law that governs the use of electronic signatures. Business and Commerce Code § 322.007(d) provides, “If a law requires a signature, an electronic signature satisfies the law.” 

 

Texas law requires the mayor to sign ordinances that he or she approves. Tex. Loc. Gov’t Code § 52.003(a). Texas law also requires the city secretary to attest ordinances in the code of ordinances. Id. § 52.006. Because Texas law requires it, a mayor or city secretary may use an electronic signature on ordinances.

 

What is an electronic signature?

 

Texas law defines an “electronic signature” as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Tex. Bus. & Com. Code § 322.002(8).

 

What should city officials consider when deciding whether or not to use an electronic signature?

 

City officials should decide whether to use an electronic signature and the type of electronic signature based on: (1) the risk of the transaction; (2) the effectiveness of the electronic signature method to be used; and (3) the cost of available alternatives like a user ID and password versus a biometric or encryption-based signature method. When analyzing the risk of the transaction, cities should evaluate the need for information at a later point, the value of the transaction, the relationship between the parties, and the risk of intrusion. 

 

Additionally, cities should maintain documents with electronic signatures in a secure manner that protects the documents from destruction or unauthorized alteration. Along those lines, cities should adopt a written policy for the creation, use, management, and preservation of records that contain electronic signatures. City staff should be trained in the implementation of the written policy. 

 

Should a city adopt an ordinance or policy to use electronic signatures?

 

While it is not legally required to have a policy in place for a mayor to sign ordinances, it is a good idea. A city will want to consider which city officials are authorized to use electronic signatures, the means for electronically signing documents, and the types of documents on which a city can use electronic signatures.

 

In order to authenticate a written electronic communication with an electronic signature transmitted to or from a city, a city must adopt rules. Tex. Gov’t Code § 2054.060(b). In adopting those rules, the council should consider the Department of Information Resources’s rules and shall make the city’s rules consistent with DIR’s rules. Id. DIR’s rules are in Title 1, Chapter 213 of the Texas Administrative Code.

 

City officials should consult with their city attorney in drafting any ordinance or policy regarding electronic signatures.

 

What types of programs work for electronic signatures?

 

Several different technologies, such as Personal Identification Number (PIN), digital signatures, smart cards, and biometrics can be used as electronic signatures. DIR keeps a list of Digital Signatures and Public Key Infrastructure (PKI) Approved Service Providers for use by state agencies.

 

Adobe Acrobat allows for the creation of a signature in the program and for an individual to electronically sign documents. Examples of electronic signature platforms that are password protected are DocuSign, SignRequest, PandaDoc, and SignNow. Platforms for biometric identifiers include Veridium and Cursor Insight. The amount of security needed for the particular document is a consideration for which platform to use. 

 

Has TCEQ provided any additional updates in response to COVID-19?

 

Yes. On Thursday, TCEQ released this website, which contains various regulatory guidance from TCEQ.

 

Does TCEQ have guidance for medical waste for solid waste disposal utilities?

 

Yes. TCEQ released guidance for disposal of medical waste as a reminder. The procedure to dispose of medical waste remains the same. The Center for Disease Control and Prevention (CDC) and the World Health Organization (WHO) recommend that the management of waste materials related to COVID-19 from healthcare facilities should be performed in accordance with routine handling procedures for medical waste (for example: lab specimens, sharps, cleaning cloths, wipes, single-use microfiber cloths, etc.).

 

Has TCEQ extended deadlines for regulated entities?

 

Yes. TCEQ extended certain deadlines for reporting for regulatory entities. The extension affects the following entities:

 

-Point Source Emissions Inventory Reporting

-Mass Emissions Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) Annual Compliance Reporting

-Air Permitting Public Notice Signage Requirements

-Stormwater General Permit Reporting

-TPDES Individual Permit Reporting

More information is available here

 

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

 

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