Government Employment in the Age of Covid
As of June 3, GA-26 (Governor Greg Abbott’s latest executive order implementing Phase III of his plan to re-open Texas) allowed most businesses to increase their occupancy limits from 25 percent to 50 percent. There is no occupancy limit, however, on local government operations, both county and municipal.
With those restrictions lifted, many local governments have allowed some or all of their employees to physically return to work. However, as they do, and as the state sets new records for COVID-19 infections, it will be more important than ever for these governments and their workers to be aware of recent federal legislation that creates new paid leave rights for certain coronavirus-related absences.
The Families First Coronavirus Response Act (FFCRA) was signed into law by President Trump on March 18, 2020 and went into effect on April 2. While private employers only need to worry about it if they have fewer than 500 employees (and there are some exceptions for companies with fewer than 50 employees), all non-emergency local governmental employers must adhere to the FFCRA’s mandates through the Act’s expiration date of December 31, 2020. We initially discussed the FFCRA in an early April blog titled Stay-at-Home Work and Providing for Paid Leave.
According to the U.S. Department of Labor (DOL), the federal department in charge of providing clarifications of the FFCRA’s provisions, there are essentially two baskets into which local government employees could fall under the FFCRA: (1) employees who need to take care of themselves, or (2) employees who need to take care of others.
(1) Employees needing to take care of themselves
Employees who are unable to work because they are quarantined due to Federal, State, or local government orders or on the advice of a health care provider, and/or are experiencing COVID-19 symptoms and seeking a medical diagnosis are entitled to two weeks (up to 80 hours) of paid sick leave at the employee’s “regular rate of pay” (up to $511 per day).
(2) Employees needing to take care of others
Employees in this category are entitled to two weeks (up to 80 hours) of paid sick leave as well. Though, unlike employees in the first category, they are only paid at two-thirds their regular rate of pay (up to $200 per day). These employees are unable to work because they must care for someone else who is subject to quarantine or for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19. If an employee is experiencing a “substantially similar condition,” as specified by the Secretary of Health and Human Services, he or she would also qualify. However, the Secretary of Health and Human Services has not yet specified any conditions that are “substantially similar” to COVID-19. Most workers in this category who have been employed for at least 30 calendar days are also entitled to an additional 10 weeks at two-thirds of their regular rate of pay.
The DOL provides an online tool for employees to determine the FFCRA eligibility and expects to soon have a similar tool for employers. In the meantime, local government officials in charge of compliance can further familiarize themselves with the specifics of the FFCRA on the DOL’s “COVID-19 and the American Workplace” website. There are, of course, broader concerns for local governments as well. One thing is certain, as Texas continues to open, and as cases and hospitalizations continue to spike, local governments will be on the front lines of efforts to mitigate the spread of COVID-19.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.