FAQ

 
The following frequently asked questions and answers (FAQs) were compiled by NYSAC through the COVID-19 public health crisis. They came to us during our conference calls with county leaders or they were sent to our coronavirus@nysac.org email. We thank the office of the New York State Governor for responding the many questions that we continue to receive during our collective response to this pandemic. Where applicable, NYSAC has included some additional guidance. Ultimately, these FAQs are designed to provide some clarity and direction for county leaders during a time of great uncertainty.
 
DISCLAIMER: This FAQ document should be considered guidance only. For questions in your county, we advise you consult with your county attorney, who serves as your county’s legal expert and counsel.

Essential vs. Nonessential Public Employment

A: “Any local government or political subdivision shall, effective March 17, 2020, allow non-essential personnel as determined by the local government, to be able to work from home or take leave without charging accruals, except for those personnel essential to the locality’s response to the COVID-19 emergency. Such non-essential personnel shall total no less than fifty-percent (50%) of the total number of employees across the entire workforce of such local government or political subdivision.” - Executive Order 202.4

NYSAC: While this answer only quoted the language of the EO, and did not answer the additional guidance answer, we have heard in follow up communications with both the State and the counties, that local governments have sole say on who they determine in their local government workforce as essential and non-essential.

A: Refer to EO 202.6

NYSAC: We interpret this answer to mean- EO 202.6 has an evolving list controlled by Empire State Development of what not-for-profit and private businesses may continue in field or in office work (deemed essential). If the not-for-profit is listed as essential in 202.6 they are permitted to continue work, however those employees (the not for profit contract) should not have to be counted for or against your county 50% total county employment level required by 202.4.

A: Pursuant to executive order 202.4. All non- essential public sector employees are to work from home. Paid, and not to charge accruals. If non-essential employees are not able to work from home they remain on leave, paid. This order is in effect until April 15, 2020. This will be revisited by the state by April 15.

A: EMTs who are interested in supporting the State’s response should fill out the “Health, Mental Health, and Related Professionals” Survey on the DOH website. (note when selecting “professional title” EMTs should select “other”)

NYSAC: Yes. Counties have the local power to determine how to use essential employees, at the office, in the field or at home.


Private sector and Not-for Profit Essential Employees

A: State guidance forthcoming.

A: Yes, EO 202.6- ESD guidance on Essential Businesses which includes:

  • Essential manufacturing including; food-producing agriculture/farms,
  • Essential retail including; Farmer’s markets, pet food
  • Essential services including; animal shelters/ and animal care

 

A: These circumstances should be reported to county officials.

NYSAC: It would appear that essential businesses have the right to stay open by way of the EO but the EO does not require they do. Requirements that service providers that counties contract with stay open may depend on the local circumstance, the contract, and other state/local law and regulations in place irrespective of the EO.

A: Childcare is considered an essential service according to ESD guidance.  See https://esd.ny.gov/guidance-executive-order-2026

NYSAC: It would appear this answer means daycare services may remain open and function as they do normally. As to whether counties can force daycares to remain open, this would depend on whatever authority a county had over daycares to remain open prior to the crisis (contract or law/reg). However, if a county would like to declare an emergency order requiring daycares remain open to assist with the COVID crisis, this may require State DOH approval as per EO 202.4.


Healthcare Best Practice

A: The county and state health department should be contacted immediately.

NYSAC: We interpret this answer to mean to contact the county and state health immediately with specific details and request further steps from them based on the specific situation.

A: Not at this time. 


Continuing County Operations and Procedures

A: The Office of the State Comptroller has put together an FAQ document for local governments. This will be continually amended and edited as we field additional inquiries. The document has also been posted to www.nysac.org/health.

A:  The following notification regarding the cancelation of exams is posted on the New York State Department of Civil Service website.

“Please be advised that all State civil service examinations scheduled for March 28 and 29, 2020 have been postponed. All impacted candidates will be notified when exams are rescheduled.

Note: This notification does not apply to civil service examinations administered by local governments. For information about the status of local civil service examinations, please contact your local civil service agency.

Questions regarding State civil service examinations should be directed to the New York State Department of Civil Service at 518-457-2487 in the Albany area or toll free at 1-877-697-5627 for the rest of the state”

Dates for upcoming exams can be found on the Civil Service website.

A: Yes, all state and county DMVs have their open to the public doors closed as per EO 202.8. Additionally, DMV renewals for items such as license and registration are tolled during the crisis. Online transactions and renewals can continue. Local DMV’s can operate via a dropbox, mailing, or electronic work on items including but not limited to car dealer transaction filings and work.

A: Guidance is continually being developed and posted by NYS DOH for both Health Care and non-health Care situations. Please use the NYS DOH website for the most up to date information.


Farming and Food Supply

A:  The State has not imposed movement restrictions.  With respect to Farmers Markets they have been deemed essential retail under current ESD Guidance.

A:  Not at this time.


Labor

Note: in this section provides questions from county members and answers given by the law firm Bolanos and Lowe LLP in the NYSAC webinar dated 3/26/20. The webinar can be found at our YouTube channel.


A: Health Care Provider Exception Under this exception, “health care provider” is broadly defined as anyone employed at: (i) Any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity; (ii) Any entity that contracts with any of the foregoing entities to provide services or to maintain the operation of the facility; (iii) Any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; or (iv) Any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state or territory or the District of Columbia’s response to COVID-19. 

A: Counties are handling this differently. Some are only notifying of positive COVID-19 test; others are providing more information, such as when there have been exposures to symptomatic people.

A: It appears that intermittent use of this leave is permissible. Regulations are expected in April 2020. Here is what we know now: Employees may take multiple leaves of absence under FFCRA, but it is limited to 12 weeks of FMLA total and 80 hours of EPSL total (or 2 weeks of average hours for part-time employees). Example: Employee needs 40 hours off to care for child in April 2020. Employees receives 14-day governmental order of quarantine in May 2020; Employee opts to take 40 hours of EPSL (and one week of unpaid EFMLA concurrently) in April 2020. Employee will have 40 hours of EPSL remaining for use in May 2020.

Employees may use EPSL and EFMLA intermittent with employer’s agreement in the following circumstances:

  • Where the employee is teleworking.
  • Where the employee is reporting to work in person but also needs EPSL or EFMLA to care for a child due to school / child care closures / unavailability resulting from COVID-19.

 

A: Yes, it applies to school or daycare closures. You should require proof. For example, you could prepare a certification attesting that no other person in the household is utilizing leave during the same period for the same purpose or otherwise available to care for the child. This could be investigated if necessary or if fraud is suspected (like you would for any other leave abuse).

A: Original EFMLA statute: “to care for the son or daughter under 18 years of age”. The CARES Act amendment to FFCRA permits USDOL to issue regulations as necessary to ensure consistency between Divisions E-G of FFCRA. USDOL guidance states for consistency, “son or daughter” also means an adult child who (1) has a mental or physical disability and (2) is incapable of self-care because of that disability. NY law states “minor child” typically that is under age 18. Federal law -- Form for child leave states: “A child is defined as a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis. A parent is defined as a biological, foster, or adoptive parent, parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.”

A: Not specified at this time.

A: We do not believe that an employer may force an employee to use a specific child care provider. Maybe the April guidance will include some information about this question. From a practical standpoint it would, it is just not clear that an employer can require the employee use a particular provider.

A: The forms issued state that the applicant must attach the mandatory or precautionary order of quarantine or isolation. These are government issued orders per the NYS law. See forms at: http://docs.paidfamilyleave.ny.gov/content/main/forms/PFLDocs/ccovid19.pdf.

On the federal, we recommend documentation from Employees. Private employers who may receive tax credits certainly will be requiring employees to provide appropriate documentation. Public employers arguably should as well because they will be ultimately utilizing taxpayer money to fund the cost for such leave (since no credit is available for counties).

For EFMLA, we recommend a certification of the need. This would be: Notice posted on government, school, or day care website, Notice published in newspaper, or a letter or email from official of school, place of care or childcare provider. For EPSL, we recommend you create a form: Employee’s name, Qualifying reason for requesting leave, Statement employee is unable to work (including telework) for that reason, Date(s) for requested leave. Documentation of the reason for leave (Governmental quarantine order, Health care provider note, or School closure notice or e-mail (per EFMLA above)).

A: Yes. 

A: Some counties are providing childcare when this happens. There is not a way for the county to space out the requests because if a person does not have childcare, they have a right to the EFMLA. The emergency responder and health care worker exceptions should help here. 

A: No. It is a total of 12 weeks for all FMLA. Issue: Use of Traditional FMLA and EFMLA Rule: Employees only get 12 weeks of FMLA total per 12-month period (including EFMLA). Example: If employee has already used 12 weeks of traditional FMLA, he/she cannot receive EFMLA during this 12-month period. Example: If employee has used 8 weeks of traditional FMLA, he/she can only receive 4 weeks of EFMLA during this 12-month period.

A: It is unfortunate, but counties do not receive the tax credit. At this point, it does not appear that counties will be eligible for credits for any leave provided to employees. The original Section 7001 subsection (e)(4) of the FCRRA provides: “This credit shall not apply to the Government of the United States, the government of any state or political subdivision thereof, or any agency or instrumentality of any of the foregoing.”


Open Meetings Law

A: Within EO 202.1 the Governor suspended the Open Meetings Law, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed. 

NYSAC: 202.1 states: “Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.”

NY Committee on Open Government Answer: [NY Committee on Open Government is] not aware of the transcription requirement being rescinded by the Governor, but I can tell you that, in our opinion, it does not need to be an immediate priority. The transcription does not need to be done by a stenographer or professional transcriptionist. If your remote access program (like Zoom or WebEx) can prepare a transcript of the recording of the meeting, that would be sufficient. Otherwise, you may wish to hold off unless and until someone makes a Freedom of Information Law request for the transcript.

NYSAC: We have multiple counties reporting they are providing instant access and some that are not. All counties are recording and getting the public access to these recordings in a timely fashion. Those that are not providing instant access are doing so due to their reading of the plane language of the Executive Order as well as their understanding of the intent of the law.

As many counties across the State have little to no broadband access this requires that phone meetings must occur. The cost and ability to allow access to the large portions of the general public over phone and even internet in some communities is not feasible. Accordingly, during this crisis, the meetings have been recorded, transcribed and made available to the public shortly after such meeting. 


Enforcement

A: Yes, on April 1st the State provided guidelines. Please note: on April 7th the Governor announced the civil fines listed in the document are doubled.


Miscellaneous/General Questions

NYSAC: Matilda’s law, which is what the Governor called it, is actually not a statute. It is strong guidance the Governor is expecting people to follow to flatten the curve and slow the spread of COVID-19.

A: On March 13, the PSC issued guidance indicating:

  • ”The State’s major electric and gas utilities - Con Edison, National Grid, Central Hudson, Orange and Rockland, New York State Electric and Gas, Rochester Electric and Gas, PSEG Long Island and National Fuel Gas - and major private water companies have all committed to suspend shut-offs for customers, and assist customers impacted by COVID-19 who may be experiencing financial hardship that makes it difficult for them to pay their utility bills during the outbreak.