The New Orleans Civil Service Commission on Monday voted to create new personnel rules to govern new categories of federally-funded paid leave days for city employees during the coronavirus crisis. 

The guidelines match new federal rules included in the Families First Coronavirus Response Act (FFCRA), passed by Congress on March 18 and effective April 1. The federal law expands paid leave requirements during the coronavirus crisis and provides federal tax credits to reimburse employers for the extra time off.

The new Civil Service rules will provide two weeks of paid leave for many New Orleans city employees and up to 12 weeks of partial paid leave for some of them. 

The city had already attempted to come into compliance with the new requirements last week with an April 14 memorandum from Chief Administrative Officer Gilbert Montaño. The memo describes the new law to department heads and informs employees how they can apply.

The memorandum and the new Civil Service rules are similar. Assistant City Attorney Will Goforth argued during Monday’s meeting that the new Civil Service rules weren’t even necessary given the previous memo and the fact that federal law supersedes local law.

“The FFCRA creates an entitlement to leave as described in the federal law. Civil Service rules are not needed to establish this leave in any way shape or form. It’s provided by federal law, which takes precedence over the civil service rules,” Goforth said. 

Still, members of the commission argued that it was important for their office to properly process and provide the new forms of leave.

The city of New Orleans, as an employer of thousands of workers, is subject to two sections of FFCRA, according to the Montaño memo. The first section provides two weeks of emergency sick leave pay to employees who cannot work from home and are either under a quarantine or isolation order, have symptoms of the coronavirus or have to remain at home to care for a child or other dependent. 

The second section provides an additional two weeks of unpaid leave and 10 weeks of paid leave for employees who can’t work specifically because they are taking care of a child whose school or usual caretaker is closed due to the coronavirus crisis.

For both of those provisions, the city expects to recoup its costs with federal tax credits, as described in the FFCRA. 

While some of these new rules were described in the Montaño memo, the Civil Service Commission voted on Monday to create new Civil Service rules to fully comply with the federal law. The FFCRA provides requirements for some private employers as well, but Monday’s action was only in relation to city employees.

The city’s goal in creating the new rules was clear: to stay in compliance with federal law, make sure pay is properly tracked for federal reimbursement and ensure that employees are getting the maximum amount possible under the law. There were, however, still some complicating factors in how the new rules will be implemented.

Prior to the new rules, the city was providing civil leave pay — a form of paid leave, separate from sick or annual days off, that is sometimes used during disaster declarations — to employees who were deemed non-essential and couldn’t work from home. As of last Friday, there were 1,339 city employees being paid under the city’s civil leave policy, according to Civil Service spokesperson Ava Monnet. Civil leave, in normal times, is paid out by the city. It now appears that those employees will be covered under the new rules in order to make them eligible for federal reimbursement. 

“I believe that’s the plan, is to move those employees to the new federal leave,” said Civil Service Department Personnel Director Lisa Hudson. “I think so.”

It’s unclear if the new rules change how Mayor LaToya Cantrell’s administration was already treating many employees. Cantrell’s office didn’t respond to questions for this story, saying that the Civil Service Department was better positioned to answer. Hudson, meanwhile, said that she shared many of the same questions asked by The Lens and that the city would be the best source to provide clarification.

One area that appears to have been changed is the treatment of first responders and “essential” employees. They were not eligible for civil leave, which was only available to employees deemed “non-essential” who could not work from home. According to a March 22 Montaño memo, it had been left up to department heads to decide who was essential or not.

But it appears that all city employees will be eligible for the newly created sick leave. 

“The Families First Coronavirus Relief Act, or FFCRA, does allow employers to exclude emergency responders and healthcare workers. It does not require it,” Goforth said during Monday’s Civil Service Commission meeting. “The city has no intent to exclude emergency responders or healthcare workers.”

One potential concern during Monday’s meeting was whether first responders might be underpaid in comparison to their usual paycheck during their leave. The new rules say that at maximum, an employee can receive up to 80 hours of leave pay for the two weeks. But many of those employees regularly work more than 40 hours a week on average. 

While Goforth didn’t lay out a concrete plan during Monday’s meeting, he suggested that the city would take steps to address the potential underpayment issue.

“I can’t commit to what else the city is going to do,” Goforth said. “But I don’t think the city has any intention to leave our emergency responders and healthcare workers with less paid leave in this situation than other city employees.”

He also said that employees will be able to supplement the federal leave pay with their own sick days or civil leave days. 

SUB: The full rules

The rules passed by the commission on Monday are broken down into two sections. The first provides for two weeks of emergency paid sick leave. In order to be eligible, an employee needs to be unable to work remotely and fit one of six qualifying descriptions:

• Subject to a quarantine or isolation order related to the coronavirus
• Advised by a medical professional to self-quarantine 
• Experiencing coronavirus symptoms
• Caring for somebody who is under a government order or medical guidance to quarantine or self-isolate
• Caring for a child who can’t go to school or their usual caretaker due to the coronavirus 
• Experiencing “any other substantially similar condition” as provided by the US Secretary of Health and Human Services.

City officials said it’s likely that every city employee qualifies for the pay under the first category — quarantine or isolation orders — because of ongoing city and state stay at home orders. 

Full-time employees can receive up to 80 hours of pay over the two weeks. Part-time employees will receive “the average number of hours” they work over two weeks. The rate of pay, however, will differ depending on the reason for taking leave. 

If the employee has to take leave due to quarantine, isolation or because he or she is experiencing symptoms, the employee will receive full pay up to $511 a day. For descriptions four through six, employees will receive two-thirds of their usual pay up to $200 a day.

The second section of the new civil service rules provides for emergency family and medical leave pay. That is only for employees who need leave because they are taking care of a child whose school is cancelled or whose caretaker is unavailable due to the coronavirus. 

Those employees receive 12 weeks of additional leave, although two of those weeks are unpaid. However, they will only receive two thirds of their usual pay up to $200 a day, regardless of if they are full or part-time. Employees also need to have worked for the city for at least 30 days before being eligible for these benefits.

For employees who are eligible for this leave, it appears they will also be able to use the two weeks of federal emergency paid sick leave to fill the gap of the two unpaid weeks. 

“We’re not aware of any employee who only qualifies under reason number 5,” caring for a child who can’t go to school, said Deputy City Attorney Elizabeth Robins. “So while they might have multiple reasons for which they qualify under the law, we’re going to use the one that provides the maximum pay. And the guidance under the FFCRA is to apply the emergency pay first, because the first two weeks of the expanded family medical leave is not paid.”