Department of Labor Guidance Defines Water Utility Employees as Emergency Responders; EPA Stresses Importance of Water Sector to Combating COVID-19

(April 3, 2020) – The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) this week published guidance on how it intends to implement the Families First Coronavirus Response Act (FFCRA), including a directive that public works personnel be considered “emergency responders” under the law. This designation is critical, as it will provide clean water utilities with more flexibility in how they handle employee issues under the FFCRA.

Specifically, the FFCRA requires local governments and other employers to provide up to two weeks of paid sick leave if an employee is sick with, quarantined because of, or caring for a child due to COVID-19, and up to an additional 10 weeks of paid family leave to care for a child whose school or care provider is unavailable for reasons related to COVID-19. The FFCRA carves out an exclusion from these provisions for health care providers and emergency responders, but the legislation does not specify which employees qualify for those exclusions.

The DOL WHD’s guidance makes clear that emergency responders excluded from the FFCRA paid leave provisions are those whose “services are needed to limit the spread of COVID-19.” The guidance specifies that “this includes but is not limited to…public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency…” It also notes that states can designate as additional emergency responders anyone they deem necessary “to minimize the spread of the virus.” 

The DOL WHD’s guidance echoes the sentiments expressed by EPA Administrator Andrew Wheeler in a letter he sent last Friday to state governors, which stated that “ensuring that drinking water and wastewater services are fully operational is critical to containing COVID-19 and protecting Americans from other public health risks.” In the letter, Administrator Wheeler requested that “water and wastewater workers, as well as the manufacturers and suppliers who provide vital services and materials to the water sector, be considered essential workers and businesses by state authorities when enacting restrictions to curb the spread of COVID-19.” EPA has also set up a webpage with resources for water and wastewater utilities.

For questions about this issue, please contact Amanda Aspatore, NACWA’s Chief Legal Counsel.