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COVID-19 and Water Utilities: FAQ

COVID-19, the illness caused by the novel corona virus has caused numerous shutdowns and cancellations around the globe since it first appeared last December.  In the past week alone, both President Trump and Governor Abbott have made federal and state disaster declarations, and local officials across Texas have issued a number of increasingly severe restrictions on public gatherings.  The TRWA Legal Department has fielded a high volume of calls about how best to conduct business, elections, and their annual meetings during these uncertain times.

 


 

Updated Wednesday, April 1 

 

Q:  Last week, congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion package designed to aid individuals and entities impacted by the coronavirus situation and subsequent business shutdowns.  Is there any funding available through the act for water utilities?

 

A:  While this bill has already been signed into law, its true value to water utilities will likely come down to the manner in which it is implemented, a process which our national organization, the National Rural Water Association (NRWA), is monitoring closely.  The bill includes provisions that can assist customers in paying bills, as well as a Small Business Administration (SBA) loan program to help employers cover payroll, rent, and other expenses. However, the details of how these funds will be distributed remains unclear.

 

Additionally, NRWA is working closely with legislators in Washington for more tailored relief for water utilities in subsequent coronavirus relief bills.  Specifically, they are advocating for funding to USDA Rural Development to assist utilities that are financially impacted by lost or reduced customer revenue during the crisis.  The goal is to provide affordable financial assistance necessary to keep staff employed and ensure the utility’s current and ongoing financial sustainability.  NRWA is also seeking funding for utilities that have to backfill operators or other staff if their employees become infected or are quarantined during this time.  We will let you know as soon as we learn more about funding opportunities in the CARES Act or any subsequent legislation.

 

$2 TRILLION COVID-19 STIMULUS PACKAGE PASSES; WHAT’S NEXT?

 

 

Updated Friday, March 27

 

Q: An employee is displaying symptoms of COVID-19, can an employer require the employee to go home?

A: Yes. During a pandemic, an employer is allowed under the ADA to require an employee to leave the workplace, particularly if the employee is exhibiting symptoms that would pose a threat to the remaining workforce.

Q: Can an employer ask an employee whether the employee has symptoms of COVID-19 (e.g., fever, shortness of breath, etc.)?

A: Yes, an employer can ask if an employee is experiencing symptoms of COVID-19.However, any information received from the employee must be treated as confidential medical information.Therefore, as with any other employee medical information, such information must be stored in a confidential file, separate from the employee’s personnel file.Additionally, employers should not disclose the identity of an employee diagnosed with COVID-19 or experiencing symptoms of COVID-19.

Q:  Many jurisdictions have limited the number of people who can congregate in one place, and some have restricted public gatherings altogether.  Can we conduct our board meetings and annual meetings by phone or videoconference?


Yes, subject to a special order of Governor Greg Abbott.  Under normal circumstances, the Texas Open Meetings Act (TOMA) reserves telephone and videoconference meetings strictly for emergencies, and in the case of videoconferences they are subject to extremely burdensome technical requirements that often make them impractical.  While well-intentioned, these rules are simply unworkable during an ongoing pandemic.  Yesterday, TRWA joined with the Texas Municipal League in requesting the governor make exceptions to these requirements.  On Monday evening Governor Greg Abbott signed an executive order suspending many of these requirements until his March 13, 2020 disaster declaration is lifted or expires.

Under the order:
Boards may meet by phone or videoconference without a quorum or presiding officer being physically present at a specified location, provided that a quorum participates in the meeting.
Systems are not required to post physical notice of the meeting as long as their online notice includes a toll-free dial-in number or free-of-charge videoconference link, along with an electronic copy of any agenda packet.
Systems are not required to provide the public with audio access to a phone or videoconference meeting  to members of the public who are physically present at a specified location, as long as the dial-in number or videoconference link provided in the notice allows for the public’s two-way communication with the board.  
The board must make a recording of any phone or videoconference meeting available to the public.
The new law requiring a public comment period at meetings is still in effect.  However, boards are not required to facilitate face-to-face interaction if they offer alternative methods for the public to communicate with them.  Dial-in communications, participation in group videoconferences, submission of questions by email, or other reasonable means of communication would presumably satisfy this requirement. 

 

The governor’s order would also apply to your annual members’ meeting (see next question for more information).  There are numerous conference call services out there – TRWA uses Telspan for our phone meetings.  For a fee, attendees can call a 1-800 number to listen and participate in the call.  

 

Please click here for a complete list of the open meeting provisions that have been temporarily suspended. Systems may contact the Office of the Attorney General with question about the suspension order by telephone at (888) 672-6787 or via email at TOMA@oag.texas.gov. Officials with questions about teleconference and videoconference capabilities offered by the Texas Department of Information Resources should visit dir.texas.gov or call (512) 475-4700.   



Q:  Should our water supply corporation (WSC) cancel our annual members’ meeting?  How can we still have it while mitigating the public’s exposure to the virus?

Don’t cancel if you can avoid it, but keep it simple and short.  By the time you’re reading this, gatherings of any size might not be allowed on a state, national, or local level.  If such a restriction is enacted, TRWA recommends postponing your annual meeting and associated elections until that restriction is lifted, even if it means conducting your meeting after the statutory May 1 deadline.  

If your annual meeting isn’t expressly forbidden by applicable regulations, you should do away with any fun activities, such as meals or door prizes, that you have used in the past to draw in attendance.  Make it clear to your membership ahead of time that the meeting will be business only, ask that members not bring non-member guests, and encourage them to drop off a ballot early instead of congregating in one area to vote in person.  Additionally, notify those in vulnerable groups that it might be best for them to stay home this year whether they are voting members, directors, or employees of your corporation.  

 

You might consider using the same dial-in or videoconference solutions for your annual meeting that you use for your regular board meetings, as governor's Open Meetings Act suspensions would also apply to this situation.  However, make it clear to your members that while they can participate in your annual meeting in this way, they cannot vote by phone or videoconference.



Q:  Can we still disconnect customers’ service for nonpayment or other violations of our tariff or rules during a declared state of emergency? 

Yes, but your utility is free to decide what policy is best for your community.   According to the Public Utility Commission,  a utility still has the authority to disconnect for nonpayment.  The recent emergency declarations from the president and governor do not automatically stop utilities from enforcing the same fees and disconnection policies they had in place before this all started.  They said it’s up to each utility to do what they think is best for their system.  They also said that some water utilities in Texas have implemented policies to delay disconnection or waive certain fees due to hardships caused by COVID-19.  

Although each utility has to take into account the financial implications for their system, our members may want to consider changing their policies during this time.  While it is difficult to provide one-size-fits-all advice on this issue, systems may establish policies to recover non-payments in arrears or set up payment plans to implement once this crisis subsides. 

Shut offs may become prohibited as state and federal legislators have expressed concerns about cutting off these essential services during the crisis.  TRWA will continue to keep you updated on this and other issues as they evolve.


 

Q:  We want to put together a Corona Virus response plan – what types of things should we consider?  
Based on questions we have received from members, we have compiled this blog post of best practices for your resource. 

 

More information on the Governor's order on Open Meetings can be found on this TASB notice -- all information for school districts also applies to TRWA members.

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