Municipal Law Update for Friday, April 10, 2020

Today is Good Friday, which is the ultimate reminder to us about sacrifice for the greater good.  Most of us are being asked to sacrifice very little compared to those on the front lines of the Covid-19 pandemic.  We are all reminded to thank our healthcare workers and first responders who are putting themselves in harm’s way every day.

Now that we have another week under our belts, I thought I would provide some additional updates.

1. Enforcement of Business Closure Order and Stay-At-Home Order.

As of April 8:

Businesses – 205 warnings; 0 citations

Stay-at-Home – 6 warnings; 2 citations

2. Zoom Training.  We arranged a Zoom training session for our firm and our municipal clients with Victoria Connor, CEO of the York County Bar Association. Victoria has kept the YCBA operations running very smoothly using Zoom.  I have participated in several virtual meetings she has arranged and moderated.  She has a very good knowledge and grasp of Zoom’s capabilities and has taught numerous training sessions on it.  The half-hour training session will be Wednesday, April 15 at 10 am.  Please email for the meeting invite if you would like to attend to learn how you can setup public and other meetings through Zoom.
3. Municipal Liquidity Fund.  In a prior update that summarized some relevant parts of the CARES Act, we mentioned the Federal Reserve would begin a program to buy municipal debt to provide liquidity to the municipal bond markets.  The Federal Reserve and US Treasury formally announced the Municipal Liquidity Fund yesterday.  The Treasury and Federal Reserve will make a $500 billion equity investment in the Municipal Liquidity Facility (MLF), which will provide direct financing to states, counties, and cities to help ensure they have the funds necessary to provide essential services to citizens and respond to the coronavirus pandemic.  The MLF will provide funds to help offset the delay in state and local tax receipts caused by the deferral of the tax filing deadline, and to help offset any short term losses in tax revenues resulting from reduced business and consumer activity due to the coronavirus pandemic.  At this time, only states, cities with population over 1 million and Counties with populations over 2 million will be eligible to participate.  Stay tuned whether the program expands to smaller municipalities or Pennsylvania uses the funds to assist local governments.  A copy of the Federal Reserve announcement and guidelines for the program is attached.  You may consider contacting your local legislators to take steps to make some of this emergency tax revenue relief available to local governments.  Local governments will be severely impacted by the tax extensions and more legislation is pending regarding property tax payment deadlines.

4. Deadline Extended for Liquid Fuels Tax Refunds.  The traditional deadline for filing liquid fuels tax refund claims with the Board of Finance and Revenue is March 31, 2020. However, in response to the substantial operational disruption experienced by local governmental entities to efforts to mitigate health threats posed by the public health emergency, the Board of Finance and Revenue will accept all 2019 liquid fuels refund claims by political subdivisions, nonpublic schools, and state agencies filed on or before June 30, 2020.
5. DCED Clarifies Short-Term Residential Rentals Are Not Life-Sustaining.  The state Department of Community and Economic Development has clarified that short-term rentals of any residential property are not authorized as life-sustaining. Hotels and motels may continue to operate. DCED has specifically noted in its Life-Sustaining Business FAQs that “Short-term rentals of any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is advertised or held out to the public as a place regularly rented to guests, or which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or rented through a home-share website are not authorized.” In addition, DCED has requested that AirBNB.com and Vrbo.com comply with this
6. Pending and Enacted Legislation.  The Pennsylvania has been very active proposing legislation to address the Covid-19 pandemic.  Here is a list of what is pending.  Click on the link to see the detail and status.

7. More FAQs.  We have compiled a list of interesting and relevant FAQs from a variety of sources.  I am also attaching two lengthy sets of FAQs published by PSATS.

Personnel FAQs

Would you consider two week rolling furlough whereby employees would work for two weeks then be furloughed for two weeks and so on. UC should allow this. Please clarify.

Yes. The first time that they are laid off, they could sign up for unemployment. Then for the weeks that they work, they have to report their wages to the Pennsylvania UC office and those wages would be deducted from their weekly benefits. The townships would need to monitor these claims to make sure that the employees are reporting their earnings.

Are Township employees eligible for the extended family and medical leave provided by the Families First Coronavirus Relief Act?

Yes, with the exception that “public works” employees, including road crews and sewer and water system operational employees, are considered emergency responders who are not eligible for the extended coverage.  Because these are critical workers to keep essential services operating, the legislation did not make this leave available to them.  The decision to extend the benefit to public works employees is therefore at each municipality’s discretion.

Does Workers’ Comp apply to our employees due to Covid-19?

Maybe.  You should always check with your WC carrier.  Here are some basic guidelines:

The employee contracts COVID-19 outside of work and calls-in sick.
▪ WC does not apply
The employee is quarantined because of exposure to the virus that is not work-related.
▪ WC does not apply
The employee contracts COVID-19 due to a work-related exposure.
▪ WC may apply.  A determination needs to be made as to whether COVID-19 is “an ordinary disease of life to which the public is generally exposed outside of the employment…”  Note: COVID-19 has not been found in the drinking water process.
The employer quarantines one of its employees due to a known work-related COVID-19 exposure. This employee does not have the disease but, because of the exposure, is not allowed to return to work for a specified number of days.
▪ WC does not apply

Should we be taking our employees’ temperatures if we are requiring them to report to work?

OSHA places the burden of protecting employees on the employer.  We believe that regular monitoring for fevers in excess of 100.4 degrees is a basic precaution that should be taken by municipalities to protect employees, residents and the public.  We are finding generally that most employers are implementing temperature monitoring as a precaution so it will likely be a standard you are held to if a problem arises.

Operations FAQs

What restrictions should we put in place for the use of township parks?

Many townships are allowing continued use of their parks for walking, biking, etc., but are prohibiting access to buildings, restrooms and playgrounds. State parks have closed access to facilities through April 30.

Can zoning officer review plans and issue permits?

If the township wishes for its zoning officer to review plans and issue permits, it may do so.

Are the legal time fences for conditional use, planning submissions, etc. still required to be met?

At this time, PSATS understands that they are to required to be met. Many townships are working with applicants to get extensions or are otherwise conducting virtual meetings/hearings.

Does the PUC Order prohibiting utility shut-offs apply to Authorities?

No, the PUC does not have Authority to order Municipal Authorities to stop shut-offs.  We are also not aware of anything in the Governor’s Emergency Orders that attempts to prohibit shut-offs by Authorities.  However, Authorities should use their judgment whether it is necessary to do shut-offs at this difficult time for most ratepayers.  One of the primary arguments for local authorities ot exist is that they can better respond to the needs of local ratepayers, so now is when our Authorities can do the most to prove they are a better local option for their ratepayers than large, for-profit utilities.

Residential construction is now permitted under the Governor’s order, so should township be issuing permits?

Residential construction is not considered to be life-sustaining under the governor’s current list. The FAQs on this issue currently states the following and townships should act in consideration of this guidance: Residential construction projects that are substantially completed may continue to completion. Projects that are “substantially completed” are those that have been issued a final occupancy permit. For all other residential construction projects limited activities may continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs only. No new residential construction or non-emergency rehabilitation projects may be started.

Meetings, Emergency Declarations, etc. FAQs

What are the implications/benefits of declaring an emergency in your township?

Emergency declarations allow townships to engage in emergency-related purchasing without complying with the bid requirements, engage the EOP plans, and become eligible to receive potential disaster-related funding, among other things.

Regarding adopting an emergency declaration, what is the best time frame to set on something like this?

Many townships have adopted their emergency declarations so that they track the dates set in the Commonwealth’s declarations. PSATS recommends a time period longer than 7 days to avoid multiple renewals, which takes time and costs. For example, a 30-day declaration could allow your township to make renewals, as needed, at your regular monthly meetings.

Are public meetings limited to ten people per the governor’s mandate?

The Governor’s orders have requirements regarding gatherings of groups of people; given that, townships should consider implementing remote meetings.

Can the township pass a resolution to preapprove normal operating expenses such as payroll taxes, insurance, payroll between meetings?

Yes, the township board can always delegate various non-legislative authorities to township employees to perform outside of public meetings.

We’ve received guidance that recorded meetings are not ADA compliant unless they have subtitles. Does this remain a concern if it is in good faith to make available to residents?

In order to comply with ADA requirements, the township should include in its meeting advertisements that anyone who may need an accommodation can contact the township office to discuss. If there are regular attendees at township meetings who may benefit from such accommodations, the township could also reach out to them directly in order to find a solution. Under the guidance that PSATS has received, municipalities should be making a good faith effort to provide for public participation.

I hope you find this information useful.  Stay safe and as always do not hesitate to contact Andy Miller amiller@mpl-law.com or Doug Myers dmyers@mpl-law.com with ay Covid-19 related questions.