The Labor Relations and Employment Law and Municipal Law Groups have prepared the following memoranda to address some of the issues municipalities are facing due to the COVID-19 outbreak. This is not an exhaustive subject list; however, it represents what we believe are the most pressing issues that have faced our clients over the past few days given your telephone calls.
We are currently experiencing changing times in the face of COVID-19. How a municipality decides to act concerning the issues outlined herein may change dependent upon the specific facts and circumstances of the situation. Further, any specific Declaration of Emergency by New York State and/or the County may also change the course of action.
We will be updating and supplementing the information contained herein as more information becomes available. As always, please feel free to contact any of the Labor Relations and Employment Law attorneys for assistance.
I. Leave Time Issues
Guidance documents issued by New York State and Westchester County have asked employers to be flexible when it comes to absences, working from home, and related issues. Municipalities do have some flexibility in this area. Decisions should be made as to who will be able to work from home; who will have their accruals charged if they do not come to work; and who will be allowed to remain home, without expectations for work to be performed and no accruals charged. Once the decisions are made, a municipality should treat all classes of employees consistently.
Typically, when an employee does not come to work, s/he must provide a legitimate reason and his or her leave accruals will be charged based upon the reasons for the absence. In addition, when an employee is not ill, there is typically an expectation that s/he will be at work, unless s/he requests a personal leave day or allowed vacation time under a collective bargaining agreement, or the terms of an employment letter or contract. The COVID-19 outbreak is presenting atypical requests for leave which municipalities need to consider.
The employee who is quarantined
The County Department of Health and/or the NYS Department of Health have ordered individuals to quarantine themselves in their homes. For the most part, these individuals are infected with COVID-19. Additionally, other individuals have been requested to voluntarily quarantine, due to contact with those who have tested positive.
While it is within the a municipality’s discretion whether or not to charge accruals for these groups of people, the involuntary nature of the absence would suggest that it may be reasonable for municipalities to not charge accruals in this instance. Municipal Boards have the power to assign individuals to home with pay for health and safety reasons, and that power can be delegated to administration. If this is the decision a municipality wishes to make, no side letter or resolution would be necessary.
We would suggest that the employee be asked to get some confirmation of the order to quarantine or self-quarantine from the Department of Health. This may be unnecessary in the case of a staff member who is infected, as the Department of Health will likely contact the municipality directly. Some flexibility and understanding should be given regarding the timing of the confirmation. It is likely that the Department of Health is overwhelmed and providing confirmations of this kind to individuals may not be a priority.
The employee who requests time off or to work from home due to an underlying medical condition
There are individuals who are presenting doctor’s notes to their employers indicating that they should be homebound, as an underlying medical condition makes the risk of contracting COVID-19 more serious. For instance, individuals with suppressed immunity or compromised respiratory systems are in greater danger than typical individuals. Such individuals may also have protections pursuant to the Americans with Disabilities Act, and may be entitled to reasonable accommodations including medical leave or alternate work arrangements.
Again, it is discretionary as to how a municipality handles this situation. We are advising, however, that in these situations, where it is not an involuntary absence, that accruals be charged. The problem here is that the employee may not be “sick” but is staying home to prevent becoming sick. In the normal course, municipalities would not allow these individuals to use sick leave for such occasions. In the present situation, however, that would be the reasonable and prudent course. To that end, upon request, our office will develop a side letter to be used with bargaining units to allow for such charge against accruals. If an employee runs out of accruals, s/he will go on leave without pay status. If your collective bargaining agreement with the employee’s union allows for sick bank time to be used, you may want to consider this as an option.
The question as to how to treat a request from a Department Head/Supervisor (non-bargaining unit member) to work from home has to be considered in light of the circumstances. Is the employee requesting to work from home capable of doing so, given his/her job responsibilities and the infrastructure of your operations? If you can allow work from home for individuals requesting to do so based on medical conditions, the municipality should consider granting such requests and not charging accruals, as the employee is working, albeit from a remote location. If work from home is impracticable, the request should be denied and accruals charged.
II. Exempting Custodial/Maintenance Employees From COVID-19 Remediation
Municipalities that decide to utilize their own custodial/ maintenance employees to perform remediation of areas where individuals with COVID-19 are known to have been present may have custodial/maintenance employees who, due to underlying medical conditions or other characteristics, are at high risk to develop complications from COVID-19. Such employees may request an exemption from performing such remediation and to remain home while the remediation takes place. In such circumstances, we do not believe that municipalities would have an obligation to grant the employees’ requests. However, should municipalities wish to do so, they could enter into a side letter with the applicable bargaining units to allow such employees to utilize their paid leave time while the remediation is being performed. A side letter would be necessary because the basis for the employees’ requests for the use of leave would not constitute a legitimate use of “sick” or “personal” leave.
III. Contracting Out Cleaning Services
To ensure that areas that have been exposed to COVID-19 are properly remediated, as well as to limit exposure to their employees, municipalities may wish to engage outside cleaning agencies to clean, disinfect and sanitize such areas. However, as such work is likely to be exclusive to your civil service/custodial bargaining unit, unless there is contract language within the applicable collective bargaining agreement or an established past practice allowing the contracting out of such work, you will be unable to do so without the agreement of the unit. Of course, if the type or nature of cleaning is of the nature that has not or cannot be done by your civil service/custodial bargaining unit, the utilization of such outside cleaning agencies would most likely not violate your contract. In addition, as stated above, a side letter may not be necessary if you have contract language or an established past practice that already allows you to contract out bargaining unit work. For example, some collective bargaining agreements contain provisions that permit municipalities to contract out bargaining unit work provided such action does not result in the loss of bargaining unit positions. In such a circumstance, the side letter would not be necessary. As such, municipalities should review their collective bargaining agreements to determine whether a side letter is necessary.
IV. Board Meetings
Under Section 102(1) of the NYS Open Meetings Law, a “‘meeting’ means the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body.” NYS Pub. Off. L. §102(1). In order for a board to validly convene a meeting, a quorum (i.e., majority of the whole number) of the board must be “gathered together in the presence of each other or through the use of videoconferencing.” NYS Gen. Const. L. §41.
Section 103(c) of the NYS Open Meetings Law requires that “[a] public body that uses videoconferencing to conduct its meetings shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates.” NYS Pub. Off. L. §103(c). There is currently no exception to this requirement. Obviously, if the board were to consider conducting a meeting(s) remotely using videoconferencing as a result of concerns about COVID-19, this requirement would defeat the purpose of avoiding such an in-person public meeting if the public could instead go to the home or other location used by any board member to participate in the meeting. However, in this time of uncertainty, the board may wish to explore whether the municipality has the technological infrastructure to livestream a remote board meeting using videoconferencing over the internet in case any temporary exceptions are made to this requirement in the future. In addition, if future circumstances dictate making the difficult operational decision of having a non-compliant remote meeting that does not provide the opportunity for public attendance, the livestream remote board meeting may demonstrate a good faith effort to comply with the spirit of the requirement.
Other options that Boards may want to consider besides cancelling meetings or holding remote meetings by videoconference are removing items from agendas that may draw large crowds, limiting the size of meetings and canceling any meeting that exceeds a certain size. In addition, if possible based on existing technology, the public can be advised that they have the ability to view the meeting and participate electronically by email or other means.