Are there reputable firms or organizations that are helping
Texas cities procure reasonably-priced Personal Protective Equipment (PPE)?
Yes, the League is aware of these organizations or companies that are successfully (based on
at least one positive member city reference) procuring PPE at this time.
Has the governor provided any further information regarding golf
Not formally. We reported yesterday (April 8, 2020) that the
governor stated on a call with county judges and mayors across the state that
golf course employees don’t provide essential services under his existing order. The argument all along for golf
courses staying open wasn’t that they are essential services. Rather, it
was the exception for essential daily activities found in the governor’s order:
“This executive order does not prohibit people from accessing
essential services or engaging in essential daily activities, such as going to
the grocery store or gas station, providing or obtaining other essential
services, visiting parks, hunting or fishing, or engaging in physical activity
like jogging or bicycling, so long as the necessary precautions are maintained
to reduce the transmission of COVID-19 and to minimize in-person contact with
people who are not in the same household.”
League staff reached out to the governor’s office for
clarification, and his office reiterated that the golf course operations
(League staff assumes that means the pro shop, café, tee time scheduling, golf
carts, etc.) are not “essential services” and thus may not open. We were
also reminded that, according to the attorney general’s office, a mayor can seek clarification
about the governor’s order. The mayors of the Cities of Kerrville
and San Angelo did just that: They submitted a letter requesting
clarification, and we await a response. Also, a staff member at the governor’s
office confirmed by text this afternoon that “They [golf courses] can’t conduct
business. No personnel.” Of course, that in-and-of-itself isn’t
binding on anyone without a formal action by the governor himself.
The bottom line today appears to be about the same as it was
yesterday: golf course offices and operations should now be closed,
although a city could allow people to use a course for walking or
jogging. Could the city just allow golfing without employees present or
with minimal scheduling and cart staff? That’s unclear. Certainly, a
city that allows the use of a golf course for any activity should ensure the
safety of patrons. Beyond golf courses, each city decides whether to close
all or a portion of its parks.
Unless and until a formal opinion from the governor’s or
attorney general’s office is released, our bottom line advice remains the
same. Of course, we defer to each mayor – on the advice of his or her city
attorney – on local enforcement protocols.
Are city employees entitled to hazard pay?
Hazard pay for city employees is not mandated by state or
federal law. State law requires state agencies to pay its eligible state
employees hazard duty pay. Tex. Gov’t Code §659.302. But no similar
law requires a city to provide hazard pay to its employees. A city can choose
to do so by enacting a policy allowing for such pay. Additionally, city
personnel should review their emergency management plan to determine if and
under what conditions hazard pay is authorized.
How can we encourage Congress to allocate more stimulus funds to
all local governments?
Congress is contemplating a fourth stimulus package, which would
follow the passage of the Coronavirus Aid, Relief, and Economic Security
(CARES) Act. The CARES Act provides funds directly to units of local
government with a population that exceeds 500,000.
Yesterday, Congressman Joe Nuguse (D – Colorado) introduced the
Coronavirus Community Relief Act to provide a separate $250 billion stand-alone
fund for COVID-19 related costs for communities with fewer than 500,000
We encourage you to contact your member of Congress to show your appreciation for their
leadership on the CARES Act and to encourage the passage of the Coronavirus
Community Relief Act. We specifically ask that you encourage your
congressperson to support the following:
-A stabilization fund for ALL cities and towns. All
cities across Texas, regardless of population, must have direct access
to stabilization funds for local budget relief. If a
population threshold is unavoidable, local governments must be permitted
to apply jointly to meet that threshold.
-A fix for the unfunded mandate in the Families First
Coronavirus Response Act (FFCRA) that prevents governmental employers
from receiving federal tax credits to offset the cost of providing
additional paid emergency leave. Most employers will be fully reimbursed for
complying with FFCRA requirements. However, this is not the case for local
governments. Sections 7001(e)(4) and 7003(e)(4) prohibit local governments
from receiving the tax credits that most other employers, whether non-profit or
for-profit, get. Therefore, the cost of this additional leave will be fully
borne by local governments despite the additional
budgetary challenges already present as a result of COVID-19.
Have any cities had success with moving special elections to a
Yes. But only with respect to special elections. (The
Secretary of State’s Elections Division has made clear their position that the
governor can’t allow the general election for city officers on any date other
than the November uniform election date. Moreover, the Elections Division
has issued guidance suggesting that cities have no choice but to move their May
general election to November.) The problem with special elections is that
they don’t fall under the governor’s order allowing cities to move their general
elections to November. That’s because the Elections Division concluded
that he doesn’t have the legal authority to do so. Examples of special
elections that have been changed include:
-Local Street Maintenance Sales Tax Reauthorization Election: The governor
by order moved the City of Sundown’s street maintenance sales
tax reauthorization election date to July 14, 2020 (the new date for the
primary runoff election).
-Crime Control and Prevention District Continuation Election: The
governor by order moved the City of Fort Worth’s Crime Control and
Prevention District continuation election to July 14, 2020.
-Constitutional Special Election to Fill a Vacancy: The City
of Anna obtained a court order allowing it to move a special election to fill
a vacancy to the November uniform date. Article XI, Section 11, of the
Texas Constitution requires a city that has three- or four-year terms to fill a
vacancy at an election “called for such purpose within one hundred and twenty
(120) days after such vacancy or vacancies occur except that the municipality
may provide by charter or charter amendment the procedure for filling a vacancy
occurring on its governing body for an unexpired term of 12 months or less.” The
court order relieved the city of the requirement to hold the election within
-Home Rule Charter Runoff Election: The City of
Eagle Pass obtained a court order moving its charter-based runoff election to a
non-uniform date in September. Even so, the city has requested that the
governor issue a proclamation as well.
What is a furlough?
The term “furlough” does not have an exact legal definition, but
it is generally understood to mean mandatory unpaid time off from work for a
certain time period that is limited in duration. A reduction in pay alone,
without any corresponding unpaid time off, is not typically considered to be a
furlough. Employers typically use furloughs in times of significant
economic downturns that are temporary in nature as an alternative to
terminating or laying off employees or implementing across-the-board pay cuts. A
furlough can be accomplished in a number of ways, including by reducing – for a
certain time period – the number of hours or days an employee works with an
equivalent reduction in pay or requiring an employee to take a certain amount
of unpaid time off. A furlough may include all employees or may exclude
some employees, such as employees who provide or support essential or critical
services. Additionally, unlike a termination or a layoff in which there is
a separation of the employment relationship, a furloughed employee is still
considered to be an employee.
A city that is considering a furlough for all or some of its
employees should work with local counsel to develop a policy that addresses,
among other things, which employees will be subject to a furlough, who approves
furloughs, how long a furlough will be in place, and what benefits, if any, an
employee will continue to accrue during a furlough. A city should also
review any contractual requirements, including any meet and confer agreements and
collective bargaining agreements, before taking action to furlough employees
who are subject to those agreements.
May a city furlough exempt and non-exempt employees?
Absent any contractual obligations, a city may furlough both
exempt and non-exempt employees. Because an employer is only required to
pay for the hours a non-exempt employee actually works, a city may reduce the
number of hours a non-exempt employee is scheduled to work provided that the
employee is paid at least the minimum wage ($7.25/hour) for all hours worked
and any applicable overtime pay.
Generally, under the Fair Labor Standards Act (FLSA), certain
exempt employees (executive, professional, administrative, and certain computer
employees) must be paid a “predetermined salary” (a minimum of $684/week) for
any workweek in which the employee works without regard to the quantity or
quality of work. Failure to do sogenerally results in the exempt employee
losing his or her exempt status. However, a special rule applicable only
to public sector employers, including a city, allows for an exempt employee to
retain his or her exempt status except in the workweek when furlough is taken
and the employee’s salary is reduced accordingly. See 29 C.F.R.
§541.710. This provision allows an exempt employee to take furlough in
less than full workweeks. For example, an exempt employee can take every
Tuesday (8 hours) as a furlough day, and the city is only required to
compensate the employee for 32 hours worked during that workweek. During
such workweek, the employee is treated as a non-exempt employee, is paid on an
hourly basis, and is entitled to overtime pay if the employee works more than
40 hours in that workweek. Cities should ensure that in a workweek when
furlough is taken, the combination of worked hours and furlough hours do not
exceed 40 hours, otherwise the employee will be entitled to overtime. As
such, most furlough policies prohibit an employee from performing any work on
the day(s) when the employee is on furlough, including tasks such as checking
or responding to emails or voicemails, answering phone calls, or attending
Cities that are contemplating a furlough may want to review the Department of Labor Fact Sheet #70, which provides
additional information on wages issues that may come up during a furlough.
Can an employee use his or her paid accrued time off to
supplement the employee’s pay during a furlough?
Yes, but only if a local policy allows for it. Some policies
require or allow an employee to use his or her accrued paid time in lieu of a
furlough. Others prohibit an employee from using any accrued time off to
supplement pay during a furlough. Cities should carefully consider these
options when drafting a furlough policy taking into account the city’s budget.
Is an employee’s health insurance coverage impacted during a
Whether an employee (and any dependents of the employee) who is
on furlough will be eligible for continued group health insurance benefits with
the city will depend on whether the health benefit plan documents allow benefits
to continue when an employee fails to work the required number of hours
specified in the plan documents. Some health benefit plans require that an
employee work a specific number of hours (for example, 20 hours) in order to be
eligible for health care benefits. A city considering a furlough should
review the plan documents and any stop-loss policy to determine how coverage is
affected during a furlough. If it is determined that continued coverage is
unavailable for furloughed employees, a city may reach out to its health
insurance carrier to determine if a waiver of any work hour threshold
requirements is available for employees whose work hours are reduced as a
result of a furlough. Cities who are members of TML Health should note
that TML Health has temporarily waived its actively-at-work eligibility requirements until
May 31, 2020, for employees whose hours are temporarily reduced due to
COVID-19, provided certain conditions are met.
The loss of health care benefits that results from a temporary
reduction in the number of hours worked due to a mandatory furlough is a
qualifying event that triggers the Consolidated Omnibus Budget Reconciliation
Act (COBRA). A city that employs 20 or more employees and that offers
health plan coverage must follow COBRA requirements, including providing COBRA
election notices to employees (and their eligible dependents) who have a
qualifying event. The employee may elect to continue health coverage at the
employee’s own expense, but a city also has the option of assisting its
employees by paying a portion of the COBRA premiums. COBRA requirements apply
even if the employee is furloughed for a short-time period such as a month.
Keep in mind that an employee who takes leave under the Family
and Medical Leave Act (FMLA) or who takes emergency family and medical leave
and emergency paid sick leave under the Families First Coronavirus Response Act
(FFCRA) is entitled to continued group health coverage under the city’s group
health plan on the same terms as if the employee did not take leave.
Does an employee continue to accrue leave benefits (e.g. sick,
vacation, personal time off) during a furlough?
There is no legal requirement for such employer-provided
benefits to accrue during a furlough, unless otherwise provided in a local
policy. For purposes of the FMLA and emergency family and medical leave
under the FFCRA, any benefits that would be maintained while the employee is on
other forms of leave (including paid leave if the employee substitutes accrued
paid leave during FMLA leave) must be maintained while the employee is on FMLA
leave or emergency family and medical leave.
May an employee scheduled to take Family and Medical Leave Act
(FMLA) or Families First Coronavirus Relief Act (FFCRA) leave be furloughed?
Yes. However, no days associated with the furlough should count
against the FMLA or FFCRA leave entitlement. Also, the request for FMLA leave
cannot be used as a selection reason to decide who gets furloughed.
Is an employee who is placed on furlough able to collect
unemployment insurance benefits?
An employee whose hours are reduced due to a
mandatory furlough may be eligible for partial unemployment benefits. Such
employees should contact the Texas Workforce Commission to determine
eligibility. Additionally, the Commission is encouraging employers, as an
alternative to layoffs, to participate in the voluntary Shared Work program, which allows employers to supplement
their employees’ wages that are lost because of a reduction in work hours with
partial unemployment benefits if certain conditions are met.