Force Account Labor & Equipment Costs, Immediate Threat

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of New York with an incident period of January 20, 2020, through May 11, 2023. Rensselaer County (Applicant) which operated a correctional facility requested Public Assistance (PA) reimbursement for 3,296.50 hours of labor overtime costs incurred by reassigned staff. FEMA wrote Grants Manager Project 681443 to capture the work but denied the request, finding the Applicant did not demonstrate overtime costs for budgeted employees were tied to the performance of eligible emergency protective measures for the declared event. The Applicant appealed, asserting its staff performed eligible emergency work under FEMA’s COVID policies. The Applicant responded to a Request for Information by providing activity logs that listed daily duties and a detailed narrative that listed categories of claimed emergency protective measures. The FEMA Region 2 Regional Administrator denied the appeal. FEMA found the Applicant did not identify specific eligible emergency protective measures employees performed throughout the employee’s entire work shift or for specific, documented periods of their shifts and could not determine that claimed labor overtime hours supported eligible emergency protective measures. The Applicant reiterates previous arguments in its second appeal and provides additional activity logs. 

Authorities

• Stafford Act § 403(a)(3).
• 2 C.F.R. § 200.403(g).
• 44 C.F.R. §§ 206.206(a), 206.223(a)(1), 206.225(a)(1), (3).
• PAPPG, at 19, 21, 24, 57, 62, 133.
• Work Eligible for Public Assistance Policy, at 3-5; O&O Policy, at 4-5.
• Emory Healthcare, Inc., FEMA-4501-DR-GA, at 2-3; Rensselaer County, FEMA-4480-DR-NY, at 4.

Headnotes

• In response to COVID-19, eligible emergency protective measures may include limited measures 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, and screening and temperature scanning.
  • The Applicant provided additional documentation on second appeal establishing that 280 hours of overtime are associated with eligible work in response to COVID-19. However, the Applicant has not demonstrated that the remainder of the overtime costs claimed are directly tied to eligible emergency protective measures. 

Conclusion

The Applicant has demonstrated 280 hours of overtime are associated with eligible emergency protective measures in response to COVID-19. However, the Applicant has not demonstrated that the remainder of the overtime costs claimed are directly tied to eligible emergency protective measures. Therefore, this appeal is partially granted in the amount of $14,251.48.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of New York with an incident period of January 20, 2020, through May 11, 2023. Rensselaer County (Applicant), which operates a correctional facility, requested Public Assistance (PA) reimbursement for 3,296.50 hours of labor overtime costs incurred by reassigned Bureau of Corrections Staff. FEMA wrote Grants Manager Project 681443 to capture the work the Applicant performed during the incident period. FEMA denied the request for funding in a Determination Memorandum on March 5, 2024. FEMA found that the Applicant did not demonstrate overtime costs for budgeted employees were tied to the performance of eligible emergency protective measures for the declared event. 

First Appeal

The Applicant appealed the determination in a letter dated April 28, 2024, requesting $196,183.40 in funding. The Applicant asserted its staff performed eligible emergency work under FEMA’s COVID policies. The New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the appeal in a letter dated June 19, 2024.

FEMA issued a Request for Information (RFI) requesting individual daily activity logs describing the type of employee (backfill, budgeted, unbudgeted, reassigned) and documentation supporting claimed emergency protective measures. The Applicant responded with four activity logs that listed employees’ daily duties, and a detailed narrative that stated staff were reassigned to manage the increased demand and additional burden of cleaning, disinfecting, monitoring, and relaying COVID-19 information. The Applicant listed categories of claimed emergency protective measures including: “Dissemination of Information,” “Facility Disinfection and Cleaning,” “Temperature Scanning,” and “Distribution of Personal Protective Equipment PPE.”

The FEMA Region 2 Regional Administrator denied the appeal on January 3, 2025.[1]FEMA stated some activities performed by reassigned staff may have included eligible costs, but the Applicant only provided general descriptions of work. FEMA found the Applicant did not identify specific eligible emergency protective measures employees performed throughout the employee’s entire work shift or for specific, documented periods of their shifts. FEMA could not determine that the claimed labor overtime hours supported eligible emergency protective measures.

Second Appeal

In a second appeal letter dated March 6, 2025, the Applicant reiterates first appeal arguments. It also states that it faced sudden staffing shortages due to quarantines resulting in unavoidable overtime as it instituted the Centers for Disease Control and Prevention-endorsed methods for distancing, personal protective equipment (PPE) usage, and isolation. The Applicant provided activity logs to illustrate, on a shift-by-shift basis, the work its Correction Officers performed. The Applicant notes that each log identifies the emergency protective measures Corrections Officers performed including temperature checks, quarantine enforcement, facility cleaning, and dissemination of COVID-19 information. The Applicant states that, together with the previously provided timesheets, payroll records, and labor summaries, the activity logs demonstrate the overtime hours were associated with the performance of eligible emergency protective measures. The Recipient transmitted the Applicant’s appeal in a letter dated April 14, 2025, with its support.

Discussion

FEMA is authorized to provide assistance for 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 due to an immediate threat resulting from the declared incident.^[3] In response to COVID-19, eligible emergency protective measures include security and law enforcement when necessary to perform otherwise eligible COVID-19 emergency work, and certain measures implemented to facilitate the safe opening and operation of eligible facilities.[4] Such measures include: (1) the purchase and distribution of face masks and PPE; (2) cleaning and disinfection; (3) COVID-19 diagnostic testing, screening, and temperature scanning; and (4) the acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing.[5] FEMA may only provide assistance in response to a COVID-19 declared event in accordance with a COVID-19 specific policy.[6]For emergency work, only overtime labor is eligible for budgeted employees.[7]To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.[8]  It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.[9]

Here, the Applicant is requesting $196,183.40 for 3,296.50 hours of overtime. The Applicant explains that its staff managed the increased demand and additional burden associated with performing emergency work in response to COVID-19 and that it faced sudden staffing shortages as it instituted CDC-endorsed emergency protective measures.[10]The activity logs provided on second appeal demonstrate that budgeted Corrections Officers worked double shifts. The second shift accounts for the overtime claimed. Most of the activity logs cover multiple days and, on most days, demonstrate that Corrections Officers performed both potentially eligible, and ineligible work. For example, for one Corrections Officer, the activity log records 10 days of work. On the entry for November 17, 2020, the Corrections Officer worked from 07:09 to 23:27 and performed temperature screenings (potentially eligible) and COVID PPE enforcement (ineligible).[11] The activity log does not demonstrate the amount of time the Corrections Officer spent on each specific task; therefore, the Applicant has not distinguished the costs associated with potentially eligible work from those for ineligible work.[12] The mixture of eligible and ineligible work, without a breakdown of time spent on each task, does not allow FEMA to determine what costs are directly tied to eligible work.

The Applicant’s activity log also contained instances of a staff member performing only eligible emergency work during their overtime shift. For example, an activity log showed that, on December 8, 2020, a Corrections Officer worked from 07:08 to 23:25 and performed disinfection of common areas and PPE distribution during both shifts, both eligible work activities. For the activity logs where staff performed only eligible emergency work during their overtime shift, FEMA found 280 hours of overtime directly tied to eligible emergency work in response to COVID-19; therefore, $14,251.48 of the Applicant’s costs claimed are eligible.

Conclusion

The Applicant has demonstrated 280 hours of overtime are associated with eligible emergency protective measures in response to COVID-19. However, the Applicant has not demonstrated that the remainder of the overtime costs claimed are directly tied to eligible emergency protective measures. Therefore, this appeal is partially granted in the amount of $14,251.48.