Overview of Work Eligibility (1 of 3)

The next component of eligibility that this course focuses on is work eligibility. The Applicant's work to repair the damage must meet certain eligibility requirements for the Applicant to receive grant funding.

The first requirement of work eligibility is that it must meet minimum work eligibility requirements.

The second requirement of work eligibility is that it must fall within one of the categories of work. Through the Public Assistance program, FEMA provides grant funding for:

• Emergency Work: Emergency protective measures and debris removal
• Permanent Work: Permanent restoration of damaged facilities, including cost-effective hazard mitigation to protect the facilities from future damage including effective hazard mitigation and codes and standards upgrades

Overview of Work Eligibility (2 of 3)

Minimum Work Eligibility

There are several factors that need to be considered when determining if work may be eligible for Public Assistance. At a minimum, work must meet each of the following three general criteria to be eligible:

• Be required as a result of the declared incident;
• Be located within the designated area, with the exception of sheltering and evacuation activities; and
• Be the legal responsibility of an eligible Applicant

Overview of Work Eligibility (3 of 3)

Categories of Work

To facilitate the processing of Public Assistance funding, FEMA separates Emergency Work into two categories and Permanent Work into five categories based on general types of facilities.

Emergency Work addresses immediate threats, including:

• Debris removal
• Emergency protective measures

Permanent Work addresses the restoration of the following:

• Roads/bridges
• Water control facilities
• Buildings/equipment
• Utilities
• Parks, recreational, and other facilities

Minimum Work Eligibility

The first section of this module discusses minimum work eligibility criteria. If the work does not meet these three criteria, even if the work falls under a Category of Work, the Applicant's project is generally ineligible.

Minimum Work Eligibility Criteria: Result of Declared Incident

One of the minimum work eligibility criterion is that the work is required as a result of the declared incident.

The Applicant is responsible for showing that work is required:

• Due to an immediate threat resulting from the declared incident (for Emergency Work); or
• To address damage caused by the declared incident.

For debris removal, the Applicant must demonstrate that the debris causing an immediate threat was generated during the declared incident period and directly by the declared incident.

For temporary repairs, mold remediation, and Permanent Work, the Applicant must demonstrate that damage was caused directly by the declared incident.

FEMA does not provide Public Assistance funding for repair of damage caused by:

• Deterioration
• Deferred maintenance
• The Applicant's failure to take measures to protect a facility from further damage
• Negligence

Documents (maintenance records, photos, etc.) are very important to validate the damages claimed by the incident to distinguish between pre-disaster and post-disaster damages.

Minimum Work Eligibility Criteria: Designated Area

A second minimum work eligibility criterion is that the work is required as a result of the declared incident.

To be eligible, work must be located in the designated area defined in the declaration (with the exception of sheltering and evacuation activities).

Emergency Work or Permanent Work performed on a facility located outside of the designated area is not eligible.

Tribal Governments do not always have geographical boundaries, and some have boundaries that cross state lines, therefore, Tribal Government declarations do not usually define specific designated geographical areas.

If a specific designated area is not defined in the declaration, FEMA determines eligibility based on legal responsibility and whether the work is directly related to the declared incident.

Minimum Work Eligibility Criteria: Legal Responsibility (1 of 7)

The last minimum eligibility criterion for work is that it must be the legal responsibility of the Applicant requesting assistance.

To determine legal responsibility for Emergency Work, FEMA evaluates whether the Applicant requesting the assistance either had jurisdiction over the area or the legal authority to conduct the work related to the request at the time of the incident.

FEMA determines legal responsibility for facility restoration by evaluating whether the Applicant claiming the costs had legal responsibility for disaster-related restoration of the facility at the time of the incident based on ownership and the terms of any written agreements (such as for facilities under construction, leased facilities, and facilities owned by a Federal agency).

There are several factors to consider when determining the legal responsibility of the Applicant. The next seven screens provide in-depth considerations when assessing the following factors:

• Facility ownership
• Facilities under construction
• Leased facilities
• Federal facilities
• Jurisdiction over an area
• Conducting activities on private property

Minimum Work Eligibility Criteria: Legal Responsibility (2 of 7)

The Applicant must have legal ownership of the facility that requires repair or restoration.

When an Applicant requests Public Assistance funding to restore a facility, it is the Applicant's responsibility to provide proof that it owns the facility. To determine ownership, FEMA may review deeds, title documents, and local government tax records.

Ownership of a facility is generally sufficient to establish the Applicant's legal responsibility to restore the facility, provided it is not under construction by a contractor or leased to another entity at the time of the incident.

Minimum Work Eligibility Criteria: Legal Responsibility (3 of 7)

The second type of legal ownership FEMA reviews when checking work eligibility is if the facility is under construction and who during that contract is legally responsible for repairing the damage.

If the facility is under construction by a contractor at the time of the incident, FEMA reviews the contract to determine whether the Applicant is legally responsible for the repair of damage caused by the incident. At a minimum, FEMA evaluates the contract to determine if it:

• Identifies the contractor or owner as being responsible for disaster-related repairs;
• Requires a builder's risk policy for losses that occur while the contractor has control of the facility;
• Has a Force Majeure provision, which is a clause that relieves the contractor from responsibility for damage beyond its reasonable control, such as natural disasters (often referred to "acts of God") or acts of war; or
• Has a provision that identifies the point at which the contractor transfers legal responsibility for the facility, or portions of the facility, back to the owner.

Minimum Work Eligibility Criteria: Legal Responsibility (4 of 7)

A third type of legal responsibility that FEMA reviews before providing grant funding is who in a lease has legal ownership to make repairs.

An Applicant may own a facility and lease it to a tenant, or an Applicant may lease a facility owned by another party. In either case, FEMA reviews the lease agreement to determine legal responsibility for repair of damage caused by the incident. If the lease does not specify either party as responsible, FEMA considers the owner of the facility legally responsible for the costs to restore the facility.

If the lease is between two eligible Applicants, FEMA provides Public Assistance funding to the Applicant legally responsible for the restoration.

Minimum Work Eligibility Criteria: Legal Responsibility (5 of 7)

Another type of legal ownership FEMA reviews before providing grants is if a facility is owned by a Federal agency.

Facilities owned and maintained by Federal agencies are not eligible. However, if a Federal agency constructed a facility and formally designated the Applicant as the legally responsible entity for facility operation, maintenance, and repairs, then the facility is eligible. FEMA reviews the agreement between the Federal agency and the Applicant to confirm the legally responsible entity.

Minimum Work Eligibility Criteria: Legal Responsibility (6 of 7)

A fifth type of legal responsibility that FEMA reviews is jurisdiction of an Applicant, specifically for Emergency Work.

In general, an Applicant only has legal responsibility to conduct Emergency Work activities within its jurisdiction. If an Applicant conducts Emergency Work activities outside its jurisdiction, it must demonstrate its legal basis and responsibility to conduct those activities.

Minimum Work Eligibility Criteria: Legal Responsibility (7 of 7)

A last type of legal responsibility that FEMA looks for before providing grant funding is an Applicant's legal basis for conducting work on private property.

To determine whether a State, Territorial, Tribal, or Local government has legal responsibility to conduct activities on private property, FEMA reviews the Applicant's legal basis and authority to conduct the activities.

Emergency Work Eligibility: Grant Funding for Debris Removal and Emergency Protective Measures

FEMA is authorized to provide Public Assistance funding for Emergency Work, specifically, debris removal and emergency protective measures.

Emergency Work is that which must be done immediately to:

• Save lives
• Protect public health and safety
• Protect improved property
• Eliminate or lessen an immediate threat of additional damage

The next portion of this module will focus on eligibility considerations for Emergency Work.

Note: For private nonprofit Applicants, eligible Emergency Work is generally limited to that associated with an eligible private nonprofit facility as follows:

• Debris removal from the facility property
• Emergency protective measures to prevent damage to the facility and its contents

Emergency Work Eligibility: Damage Caused During Performance

During the performance of Emergency Work, an Applicant may damage improved property, supplies, or equipment. The repair of this damage is eligible as part of that respective project if the damage was:

• Due to severe conditions resulting from the incident
• Unavoidable
• Not due to improper or excessive use

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