Immediate Threat, Force Account Labor & Equipment Costs

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of New York on March 25, 2020, with an incident period of January 20, 2020, to May 11, 2023. South Kortright Central School (Applicant) requested Public Assistance (PA) funding for costs related to work and purchases associated with South Kortright Central School. Specifically, the Applicant requested reimbursement of personal protective equipment (PPE), cleaning and disinfection supplies, and other miscellaneous supplies. Additionally, the Applicant asked for force account labor (FAL) straight-time for two custodial workers who performed cleaning tasks.

FEMA issued a Determination Memorandum (DM) on April 3, 2023, granting $9,607.04 for PPE and cleaning and disinfection supplies. FEMA denied $10,414.74 for the purchase of the remaining supplies and the claimed FAL straight-time costs.[1] First, FEMA found the Applicant had not tied the costs of the those supplies to the performance of eligible emergency work. Second, FEMA denied the requested FAL straight-time costs for the two custodial workers because they were budgeted employees; FEMA stated that only overtime costs for budgeted employees who performed emergency work were eligible. 

First Appeal

The Applicant filed a first appeal in a letter dated April 4, 2023, requesting FEMA approve the previously denied costs. The Applicant claimed the supplies were all unbudgeted costs and were purchased as a result of COVID-19. The Applicant asserted its FAL costs were associated with unbudgeted employees because both custodial positions were not budgeted when the individuals were hired. The Applicant stated they were in effect, per diem positions, or alternatively, temporary part-time positions, and the employees were called in as needed to assist with the extra workload in providing extra cleaning and disinfection in response to COVID-19. The New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the Applicant’s appeal to FEMA in a letter dated May 30, 2023, in support of the Applicant’s position. 

On August 2, 2023, FEMA issued a Request for Information (RFI). FEMA asked for documentation supporting the Applicant’s claim that the employees were unbudgeted employees. On August 31, 2023, the Applicant responded, referencing previously submitted documentation. 

On November 9, 2024, the FEMA Region 2 Regional Administrator partially granted the Applicant’s appeal. FEMA approved $2,431.50, finding that certain previously denied supplies were related to eligible cleaning and disinfection work; however, denied the remaining costs. FEMA found that the remaining supplies (e.g., disposable utensils and cups, portable water dispensers, and lanyards for face masks) were not within the scope of eligible emergency protective measures outlined under any FEMA COVID-19 policy. Next, FEMA stated that it disagreed with the Applicant’s position that the two workers who incurred the FAL straight-time were temporary, unbudgeted employees. FEMA pointed out that according to the Board of Education’s October 2019 meeting minutes, the first custodian employee was hired before the pandemic as a substitute driver and custodian for the 2019-2020 school year. FEMA stated that the substitute descriptor did not, by itself, make the position temporary or budgeted. FEMA then noted that, similar to the first employee, the second custodian worker’s term of employment was for the full year of 2020-2021. Lastly, FEMA stated that a May 2020 budget newsletter indicated that operation/maintenance worker salaries, including costs associated with substitutes, was budgeted. Therefore, FEMA found the two custodial workers were budgeted employees.

Second Appeal

The Applicant in a letter dated January 11, 2024 files a second appeal, requesting the denied costs for miscellaneous supplies and FAL straight-time, and reiterating previously raised arguments. For the miscellaneous supplies, such as disposable utensils and cups and portable water dispensers, the Applicant asserts they were used to reduce the use of high touch services. For the lanyards for face masks, the Applicant states it used these to help ensure mask efficiency and longevity. The Recipient forwarded the Applicant’s second appeal in a letter dated March 8, 2024, in support of the Applicant’s position.

Discussion

Immediate Threat

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[2] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required to eliminate or lessen an immediate threat to lives, public health, or safety resulting from the declared incident.[3] In response to COVID-19, eligible emergency protective measures include certain measures implemented to facilitate the safe opening and operation of eligible facilities, including the purchase and distribution of face masks and personal protective equipment, cleaning and disinfection, COVID-19 diagnostic testing, screening and temperature scanning, and the purchase and installation of temporary physical barriers and signage.[4] To be eligible, costs must be directly tied to the performance of eligible work.[5] It is the applicant’s responsibility to substantiate its claim as eligible and to clearly explain how the records support its appeal.[6]

The Applicant requests reimbursement of certain miscellaneous supplies, such as disposable utensils and cups, portable water dispensers, and lanyards for face masks, and describes these purchases as costs to facilitate the safe opening and operation of its eligible facilities in response to COVID-19. The above cited policy, however, limits eligible emergency protective measures to specific categories of work performed in response to COVID-19.[7] Here, none of the supplies at issue fall within those specific categories or any other comparable measure. For instance, FEMA authorizes assistance for the purchase and distribution of face masks but makes no mention of providing assistance for lanyards. While the Applicant argues the lanyards help ensure mask longevity, as people could attach a mask to a lanyard rather than disposing of it prematurely and therefore perhaps use it longer, the Applicant has not demonstrated how a lanyard itself eliminates or lessens an immediate threat. Therefore, the Applicant has not demonstrated that the claimed purchases are directly tied to the performance of eligible work outlined in FEMA’s COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat.

Force Account Labor & Equipment Costs

For emergency work, except in limited circumstances, the straight-time of an applicant’s budgeted employees performing emergency work is not eligible.[8] For unbudgeted employees performing emergency work, both straight-time and overtime labor are eligible.[9] An applicant’s permanent employees are considered to be budgeted employees, while temporary employees hired to perform eligible work are unbudgeted employees.[10] An applicant may assign an employee to perform work that is not part of the employee’s normal job.[11] FEMA provides PA funding based on the reassigned employee’s normal pay rate, not the pay level appropriate to the work, because the Applicant’s incurred cost is the employee’s normal pay rate.[12] Straight-time of a permanent employee funded from an external source (such as a grant from a Federal agency or statutorily dedicated funds) is eligible if the employee is reassigned to perform eligible emergency work that the external source does not fund.[13]

Here, the Applicant claims FAL straight-time costs for two custodial workers, and asserts they were unbudgeted employees. The record shows the first custodial worker was hired as a substitute driver and custodian prior to COVID-19 for the 2019-2020 school year. However, the Applicant has not produced documentation that demonstrates the hiring was temporary or the employee was otherwise considered unbudgeted under FEMA policy. Likewise, the record indicates the second custodial worker’s term of employment was the entire 2020-2021 school year. Notably, the Applicant’s May 2020 budget newsletter demonstrates that operation/maintenance worker salaries, including costs associated with substitutes, was budgeted. Therefore, the Applicant has not demonstrated the FAL straight-time costs for emergency work were associated with unbudgeted employees. 

Additionally, the Applicant argues that its first custodial worker was reassigned to cover additional cleaning work. However, the Applicant has not produced documentation that demonstrates the cleaning work performed by the first employee, who was hired in part as a custodian, was not part of the employee’s normal job. Even if the Applicant had provided such documentation, the employee’s reassignment does not impact whether they are considered budgeted or unbudgeted.[14] Consequently, based on the above, the FAL straight-time costs are not eligible for PA funding.

Conclusion

The Applicant has not demonstrated the supplies at issue are directly tied to the performance of eligible work. Additionally, the Applicant has not demonstrated the FAL straight-time costs for emergency work were associated with unbudgeted employees. Therefore, the appeal is denied.