Force Account Labor-Emergency

Appeal Brief

Summary Paragraph

In February 2014, a severe winter storm resulted in sleet, ice and snow accumulation in the City of Atlanta, Georgia.  FEMA prepared Project Worksheet (PW) 322 to address the cost of force account labor (FAL), materials (food for employees and general cleaning supplies) and equipment (ice removal of runways) used to establish an Emergency Operations Center (EOC) and perform emergency protective measures at Hartsfield-Jackson Atlanta International Airport.  In addition, the PW documented costs associated with salting bridges and roads.  FEMA subsequently determined the work and costs in PW 322 were ineligible and the Applicant appealed.  On first appeal, the Regional Administrator concluded that the Applicant did not substantiate: (1) its FAL was performing eligible emergency protective measures; (2) it had a predisaster policy in place to reimburse the cost for meals for its FAL; (3) general cleanup costs were eligible; and, (4) that ice removal was eligible.  The Applicant appeals and claims that: (1) its FAL helped lessen the immediate threat to public health and safety; (2) reimbursing meal costs was necessary to allow its FAL to continue with emergency work; and (3) ice removal is distinguishable from snow removal and allowed under FEMA policy as emergency work.

Authorities and Second Appeals

• Stafford Act § 403.
• 44 C.F.R. §§ 206.201, 206.206, 206.225, 206.226, and 206.227, 206.228.
• DAP 9527.4, Snow Assistance and Severe Winter Storm Policy.
• RP9525.7, Labor Costs – Emergency Work.
• City of Blair, FEMA-1878-DR-NE, at 4.
• PA Guide, FEMA 322, at 42, 28, 54.

Headnotes

• Stafford Act § 403(a) authorizes FEMA to provide federal assistance to meet threats to life and property resulting from a major disaster, including work that reduce immediate threats to life, property, and public health and safety. 
• Work that is typically performed by an applicant’s employees is not eligible.
  • The Applicant has not demonstrated through the documentation submitted on appeal that the work conducted by its FAL were eligible.
  • In addition, even if the work were eligible, the Applicant did not demonstrate that the work was not typically performed by its employees.
• The PA Guide states that while the cost of operating a facility or providing a service may increase due to or after a disaster, these costs are generally not eligible.  An example of an ineligible increased operating expense is feeding staff of critical facilities. 
  • The Applicant did not demonstrate that the cost of meals were eligible.
• 44 C.F.R. § 206.225(a) authorizes necessary to eliminate immediate threats, however, § 206.227 limits funding to disaster declarations that are based on cases of record or near-record snowfall.
• FEMA will not include snow removal costs when calculating costs for severe winter storm declarations, unless the county qualifies for snow assistance as a record or near record snowfall.
  • Here, there was not a record or near record snowfall and as such, the Applicant did not qualify for snow assistance, which includes activities such as de-icing, sanding, and salting the roads.

Appeal Letter

Appeal Analysis

Background

From February 10 to 15, 2014, a severe winter storm resulted in sleet, ice, and snow accumulation in the City of Atlanta, Georgia (Applicant).  FEMA prepared Project Worksheet (PW) 322 to address the Applicant’s request for costs associated with its force account labor (FAL) compensatory time and overtime, materials (food costs for FAL), and equipment used to establish an Emergency Operations Center (EOC) and perform emergency protective measures for a portion of the Hartsfield-Jackson Atlanta International Airport (Airport) located in Fulton County.  In addition, the PW documented costs associated with salting nearby bridges and roads.  FEMA subsequently determined the work captured in PW 322 was ineligible and notified the Georgia Emergency Management Agency (Grantee) of its decision by email on September 22, 2014.  PW 322 stated that the FAL was not eligible per FEMA Recovery Policy RP9525.7, Labor Costs - Emergency Work, and the Applicant’s employee overtime policy did not allow for reimbursement of overtime for exempt employees.  PW 322 further stated that snow assistance costs, equipment and materials to salt roads and bridges were also ineligible per FEMA Disaster Assistance Policy DAP9523.1, Snow Assistance and Winter Storm Policy.  Additionally, FEMA noted that the Applicant did not have a food and lodging provision in its predisaster employee policy, which would require it to pay such expenses, and consequently, costs to feed employees working regular shifts were ineligible for Public Assistance (PA) funding.

First Appeal

The Applicant appealed FEMA’s determination on November 26, 2014, and argued its employees performed critical emergency work outside of their normal duties as a direct result of the disaster.  Further, the Applicant claimed that its employment policies allowed for exempt employees to receive compensatory time and for non-exempt employees to receive overtime.  In addition, the Applicant asserted it had a duty to feed its employees, who stayed at the airport to avoid dangerous road conditions outside, and could not easily access food vendors in the Airport’s terminals.  The Applicant also contended that ice removal was needed to ensure the Airport maintained one functioning runway to allow for necessary landings for flights and possible relief supply deliveries.  Finally, the Applicant argued that the road salting should be evaluated as an emergency protective measure for ice removal rather than the narrow interpretation under FEMA’s snow removal allowance.[1]  The Grantee forwarded the appeal on December 2, 2014, and requested that FEMA review PW 322.

FEMA Region IV sent the Applicant a Final Request for Information (RFI) on February 1, 2016.  In the Final RFI, FEMA requested the Applicant: (1) specify the appeal amounts associated with each appealed issue (snow removal, FAL costs, and meals); (2) submit its FAL pay policy and examples of premium pay paid to employees in non-federally declared events and (3) provide documentation reflecting its FAL overtime and compensatory time costs (payroll information, dates worked, daily activity logs, scheduled hours, pay codes, and total hours worked each week).

In its March 4, 2016 response, the Applicant stated that the work performed at the Airport and costs incurred were reasonable and necessary to maintain order and address the threat to public health and safety.  The Applicant noted that the work done was to establish and operate the EOC, protect the Airport and mitigate the level of shutdown to the Airport.  The Applicant allocated costs incurred by different departments (e.g., operations, maintenance, security, police, fire, transit, etc.) to the locations of work and included costs for general cleaning supplies not previously identified or claimed.  The Applicant then identified costs to the portion of the Airport located in Fulton County.  With regard to the cost of meals, the Applicant noted that it spent no more than $10.00 on each employee’s meal, and the cost was reasonable given the conditions presented.  The Applicant emphasized the distinction between the emergency protective measures performed to address ice accumulation from snow removal and asked FEMA to evaluate the work accordingly.  Finally, the Applicant attached its employee premium pay policy and indicated it previously paid employees for overtime or awarded compensatory time for non-federal events.  The Applicant did not submit the complete payroll information that FEMA requested, stating such a request was unreasonable and went beyond what FEMA’s guidance and other policies required.  The Applicant resubmitted information delineating its employee names and department, dates worked, total hours worked, hourly rate and benefit calculation information, as well as general descriptions of the work performed.

The FEMA Region IV Regional Administrator (RA) denied the Applicant’s appeal in a decision dated January 5, 2017.  In her decision, the RA stated the Applicant was required to submit sufficient documentation to support the eligibility of both work and costs associated with a request for PA.  With regard to the EOC, the RA found that none of the employees assigned incurred overtime.  For all other FAL, the RA noted the Applicant provided documentation showing the eligibility of the costs associated with the overtime and compensatory time, but the documentation did not reflect that those costs were associated with eligible emergency protective measures.  She noted that employees who received compensatory time or overtime for performing their regular job duties during a disaster were not performing emergency protective measures.  The RA also denied material costs associated with meals because the Applicant’s employee policy in effect at the time of the disaster did not provide for meals or lodging and FEMA guidance does not allow for PA for costs an Applicant is not required to incur.  The RA found that the Applicant’s requested costs for general cleanup or cleanup supplies were not specific, and had no description or supporting documentation to support funding.  As such, the RA could not determine if those costs were incurred as a direct result of the disaster. 

In response to the Applicant’s request for ice removal costs, the RA explained that “snow assistance” under FEMA policy includes “snow removal, de-icing, salting, snow dumps, and sanding of roads and other eligible facilities,” and that FEMA only reimburses snow assistance included within the declaration’s scope or ice removal operations incidental or necessary to perform other eligible work.[2]  Accordingly, she determined that the ice removal in this instance was not eligible for PA funding.

Second Appeal

In a letter dated March 17, 2017, the Applicant appeals the RA’s decision and requests $159,882.62 in PA funding.  In its appeal, the Applicant states that it sustained severe ice accumulation and needed to address potential disastrous impacts.  It references FEMA’s Public Assistance Guide (PA Guide)[3] and notes its responsibility to protect the health and safety of its citizens and additional members of the public stranded at the Airport.  Accordingly, the Applicant argues its FAL lessened the immediate threat to public health and safety within the airport, but also helped disseminate information to the public, manage traffic in and out of the Airport, and mitigate damage to significant public and private property at the Airport.  The Applicant explains that its FAL worked extended hours to ensure that at least one of the Airport’s runways was functional at all times, but that the amended Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) § 403 now allows regular time compensation under certain conditions.  It also provided examples of emergency protective measures performed such as: providing additional airfield escorts; friction testing for the runways; performing additional roadway maintenance required due to the hazardous conditions; providing necessary staffing for the EOC; assisting the public by providing necessary information and supplies, such as diapers, blankets, toiletries, first-aid items, and other necessities to stranded passengers; and disseminating status information to the public and media.  The Applicant notes FEMA’s policies allow reimbursement of overtime for non-exempt employees and compensatory time for exempt employees, as it is allowed under the Applicant’s pay policy.  The Applicant argues that the cost for meals is eligible because it was a required expense to allow its FAL to continue with tasks directly required to protect health and safety of its citizens and is distinguishable from other examples where it was only an economic impact.  The Applicant again distinguishes ice removal from snow removal and asserts FEMA should evaluate the work as an emergency protective measure.  The Grantee concurred in a letter dated March 20, 2017. 

Discussion

Eligibility of Claimed Emergency Protective Measures: Support Documentation

The Stafford Act § 403(a) authorizes FEMA to provide federal assistance to meet threats to life and property resulting from a major disaster, including work that “reduce[s] immediate threats to life, property, and public health and safety.”[4]  This work is categorized as emergency work, which Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.201(b) defines as “work which must be done immediately to save lives or to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.”[5]  Section 403 of the Stafford Act includes “clearance of roads…necessary to the performance of emergency tasks,” “dissemination of public information and assistance regarding health and safety measures,” and “reduction of immediate threats to life, property, and public health and safety.”[6]  Moreover, when an applicant files an appeal of a PA determination, 44 C.F.R. § 206.206(a) requires the applicant to provide documented justification supporting the work claimed is an eligible emergency protective measure.[7] 

The Applicant claims that it had a responsibility to protect the health and safety and disseminate information to its citizens and those stranded at the Airport.  In carrying this out, the Applicant indicates its FAL set up an EOC to help lessen an immediate threat to public health and safety within the Airport, managed traffic coming to and from the Airport, and helped mitigate damage to the Airport and associated equipment.  However, the Applicant does not articulate specific, actual work performed outside of its employees’ regular duties that resulted in actual costs to address immediate threats from extreme conditions.  Instead, it only provided documentation related to its FAL with general work descriptions, such as debris clearing, supervision, vehicle maintenance, inspections, logistics, and planning,[8] that are indistinguishable from its employees’ regular duties.  For instance, the Applicant claims that its FAL provided additional airfield escorts, conducted friction testing for the runways, performed additional roadway maintenance, and assisted the public by providing information and supplies, but the Applicant does not provide documentation showing that these tasks fall outside its employees’ typical duties and are in furtherance of work to address an immediate threat.  Even if the employees’ typical duties increased as a result of the storm, PA funding is not available for increased labor costs.[9] 

The Applicant repeatedly uses the terms “possible” or “potential”[10] before discussing the danger or impact of the storm, and does not link the FAL’s work to a specific immediate threat.  While it is understandable that the Applicant needed to be prepared for the storm, it has not bridged that responsibility with how its actions constitute emergency protective measures.  For example, it does not demonstrate how the actions taken protected the health and safety of those stranded at the Airport, what information it disseminated and how those activities addressed an immediate threat, or helped mitigate damage to the Airport.  As the RA stated on first appeal, the work described in the Applicant’s documentation was part of the employees’ regular duties and the additional work done was not directly linked to an immediate threat.  As such, the Applicant has not shown that the work conducted by its FAL were eligible emergency protective measures.

Eligibility of Compensatory Time and Overtime

For emergency protective measures, only overtime labor is eligible for nonexempt employees, regardless of normal duties or assignments.[11]  Overtime for nonexempt employees and compensatory time for exempt employees is determined in accordance with the applicant’s predisaster policies, which should be applied consistently in both disaster and non-disaster situations.[12] 

The Applicant is requesting compensatory time, incremental costs of overtime, and associated benefits of personnel it claims would not have been incurred but for the disaster.  It states that the amended Stafford Act allows funding for overtime costs if the emergency protective measures are a direct result of the disaster.  The Applicant’s pay policy states that exempt employees may be given compensatory time off at the rate of one hour for each hour worked beyond their regularly schedule work period, but are not eligible for overtime pay.[13]  While, as the RA found in her first appeal decision, the Applicant demonstrated the cost of overtime or compensatory time was allowed under its pay policy, the underlying work performed is not eligible.  Consequently, these costs are ineligible.  

Meal Reimbursement & General Cleaning Costs: Support Documentation

When an applicant files an appeal of a PA determination, 44 C.F.R. § 206.206(a) requires the appellant to provide documented justification supporting its position.[14]  The PA Guide states that while the costs of operating a facility or providing a service may increase due to or after a disaster, these costs are not eligible, with a few exceptions.[15]  The PA Guide provides examples of ineligible increased operating costs including feeding staff of critical facilities and food services.[16]  It is also important to note that if the underlying work performed is ineligible, the cost for associated materials is likewise not eligible.[17] 

The Applicant argues that in this instance the cost of meals is distinguishable from ineligible increased operating expenses that are incurred from administrative type activities or are only an economic concern.  Here, the Applicant argues the costs for meals were necessary so that its FAL could continue with tasks required to protect the health and safety of its citizens.  The Applicant further states that due to the frenzied nature of the terminals, it was not practical for its employees to obtain meals from vendors within the Airport.  In addition, the Applicant explains that the roads were too dangerous for its FAL to go out or go home for meals, and requiring them to do so would only add to the congestion on the roads. 

As this underlying work is ineligible for PA funding, the meals and cleanup costs are likewise ineligible.  Even if the underlying work was eligible, the cost of the meals and cleanup would still not be eligible.  The Applicant has not provided documented justification demonstrating the meal costs are eligible.[18]  Its arguments that the hazardous conditions required it to provide meals are not persuasive, in particular since its FAL had access to numerous vendors at the Airport, could have brought meals with them, and the Applicant was not obligated to provide meals during normal work hours.

Ice Removal/Salting

The Stafford Act § 403 grants FEMA discretionary authority to provide assistance essential to meet immediate threats to life and property resulting from a disaster.[19]  Implementing this authority, 44 C.F.R. § 206.225(a) authorizes emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety, as well as threats of significant additional damage to improved property.[20]  However, 44 C.F.R. § 206.227 limits emergency and major disaster declarations that are based on snow or blizzard conditions to cases of record or near-record snowfall, and limits federal assistance in qualifying disasters to a period of time specified by the conditions of the disaster and in limited circumstances to perform eligible permanent work.[21]

It is important to note that FEMA Disaster Assistance Policy DAP9523.1, Snow Assistance and Severe Winter Storm Policy, defines snow assistance as “[a]ssistance for all eligible activities under Category B, emergency protective measures . . . related to a snowstorm, including snow removal, de-icing, salting, snow dumps, and sanding of roads and other eligible facilities.”[22]  It also defines a severe winter storm as “an event that occurs during the winter season that includes one or more of the following conditions: snow, ice, high winds, blizzard conditions, and other wintry conditions; and that causes substantial physical damage or loss to improved property.”[23]  In contrast, it defines a snowstorm as “an event in which a State has record or near record snowfall.”  The policy distinguishes snowstorms from severe winter storm declarations.  The latter states that in addition to satisfying the requirements or disaster declarations, it is not required to meet the record or near record snowfall requirements.  However, FEMA will not include snow removal costs when calculating costs for severe winter storm declarations.[24]

On second appeal, the Applicant stresses the point that FEMA Region IV misclassified the event as a snowstorm, when in fact it was a severe winter storm.  This is highlighted because the Applicant believes there is a distinction between the availability of assistance depending on the classification.  Before discussing this alleged distinction and the implications therein, it is important to note how the Applicant described the event in its first appeal:

Precipitation started as light rain late on the 10th, with significant snow by the following morning while still above freezing, turning back to light rain before ending mid-day.  More light rain began after midnight, changing to snow as temperatures fell, then to sleet, freezing rain, back to sleet again before another significant snow by the morning of the 13th.[25]

FEMA agrees that the weather event in this instance is a severe winter storm, and appropriately declared it as such.  FEMA also notes that there was not a record or near record snowfall and accordingly finds that the assistance was limited.[26]  The policy limits snow removal costs for severe winter storms, just as it limits assistance in snowstorms.  The Applicant did not qualify for snow assistance, such as de-icing, sanding, and salting the roads, nor did the Applicant document that it performed limited snow removal to perform otherwise eligible work.  Thus, the work was not eligible for PA.  

Conclusion

The Applicant has not demonstrated that it performed emergency protective measures addressing an immediate threat to public health and safety.  Therefore, the requested costs of FAL for overtime and compensatory time, meals, and general cleaning are ineligible for PA funding.  In addition, the ice removal work does not meet FEMA’s eligibility requirements.  Accordingly, the appeal is denied.