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Returning to “Normal”: Legal Issues Law Enforcement Agencies Face in Returning to Work Post-COVID-19
The COVID-19 pandemic struck like lightning, moving law enforcement departments to make rapid changes to employment practices, from modifying work schedules to conducting medical screening to disallowing vacations. Swift changing circumstances left little room for deliberation or labor opposition. As communities emerge from stay-at-home orders and return to a new “normal” though, employees are questioning some changes. This article identifies the key laws to know in assessing preparedness for the legal challenges ahead.
Officials are lifting health orders, but COVID-19 remains a risk. Employees may file complaints and Cal-OSHA may take enforcement action if employers do not implemented adequate safety measures. Chiefs should evaluate anew workplace safety measures in light of updated health guidance and changing circumstances. California Labor Code section 6400 requires employers to furnish safe and healthful workplaces, and Cal-OSHA regulations require employers to adopt Injury and Illness Prevention Programs, to conduct a hazard assessment, and provide personal protective equipment to employees to protect them from identified hazards. The California Department of Public Health and Cal-OSHA recently published guidance that employers establish written, worksite-specific COVID-19 prevention plans and designate someone at each worksite to implement the plan.
Law enforcement executives have implemented safety measures, like temperature checks, virus testing, and travel restrictions, which implicate employee privacy. Under California’s Fair Employment and Housing Act (“FEHA”) and the federal Americans with Disabilities Act (“ADA”) employers may require medical tests and make medical inquiries so long as they are narrowly tailored to the job and there is a “business necessity” for the test/inquiry. Medical screens, like temperature checks, have received tacit approval from authorities in the pandemic; courts will uphold them if they are minimally invasive and effective. Courts may more closely scrutinize individually ordered or more invasive medical exams, like antibody or antigen testing.
Employers should obtain written Confidentiality of Medical Information Act (“CMIA”) compliant authorization from employees before receiving and using employee medical information, and should not disclose the information to others. Law enforcement executives have faced pressure from some employees to identify sick colleagues, but in light of privacy laws agencies should not identify sick employees by name and should instead assure employees the department is effectively using medical information to protect them.
Public employers’ questions about and limitations on employees’ off duty activities, like traveling, also implicate employee privacy rights. Departments should be able to demonstrate that any inquiries and restrictions have a nexus to work. For example, restrictions on employee travel to virus “hot spots” during the pandemic may survive legal challenge if an employer can show that the restrictions protect the health of co-workers.
The Meyers-Milias-Brown Act (“MMBA”) obligates departments to meet and confer with employee representatives on request about negotiable changes to wages, hours and other terms and conditions of employment. Employee groups may file complaints with the Public Employment Relations Board (“PERB”), which recently has asserted jurisdiction over police unions, when employers unilaterally change certain working conditions without affording employees the chance to bargain. In an emergency, like the pandemic, an employer may effect some changes immediately, like changing work schedules, limiting time off, even implementing certain safety measures. However, this does not absolve them entirely of the requirement to bargain. Rather, it affects the timing of the negotiations. Government Code section 3504.5 authorizes agencies to take immediate unilateral action without prior notice or meeting with labor groups but requires the agency to provide an opportunity to meet at the earliest practicable time afterwards. Chiefs should inventory the changes they made in the pandemic, document any agreements they reached with affected unions about the changes, and determine whether to provide notice and an opportunity to bargain to avoid unnecessary exposure to PERB proceedings.
Employee Leave Rights
Employees in California have many leave rights, including under the Workers’ Compensation Act, the Family First Coronavirus Response Act (“FFCRA”), the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”), as well as “reasonable accommodation” leave under the ADA and/or the FEHA , and agency-provided leaves, e.g. sick and vacation leave. Therefore, departments should plan for possible staffing shortages.
Workers’ compensation leave, like Labor Code section 4850 leave, which provides peace officers up to one year “without loss of salary,” and Temporary Total Disability (“TTD”) leave, keep employees out for significant amount of time. On May 6, 2020, Governor Gavin Newsom issued Executive Order N-62-20, establishing a rebuttable presumption that employees directed to report to work who contract COVID-19 between March 19 and July 5, 2020 are entitled to workers’ compensation benefits, including leave. The Order does not however cover any employee whose “place of employment” during the covered period was their residence. Departments may consider whether to wait after July 5, 2020 to bring back certain employees who can work at home.
Departments should coordinate leave requests with human resources because these laws overlap and are difficult to administer correctly. What if a records technician cannot return to work because they or a family member has a compromised immune system? What if an officer needs to be home because their child’s school is closed? These scenarios implicate the FFRCA, FMLA, CFRA and possibly the ADA, and FEHA. Violations can be costly, and many legal experts predict a significant uptick in litigation for maladministration of employee leave rights. Retaliation claims are also something to be cognizant of as these laws have anti-retaliation provisions.
Wage and Hour
The Fair Labor Standards Act (“FLSA”) requires that all time spent on tasks done for the benefit of the employer be counted as “hours worked,” and many collective bargaining agreements have similar provisions. In the context of the pandemic, this means that departments must make sure that hourly employees accurately record and receive pay for time spent on tasks like temperature-taking, answering medical questions, cleaning/ disinfecting work areas, and spent waiting to enter facilities due to COVID-19 protocols. Employees may seek to recover wages for such “off-the-clock” work.
Personnel Investigations and Discipline
The pandemic affects administrative investigations and discipline as well. For example, attorneys have sought delays of interviews and disciplinary meetings. Absent a doctor’s note, an employee cannot insist proceedings be postponed indefinitely. However, employers should also accommodate doctor-imposed work restrictions, for instance by utilizing videoconferencing to advance proceedings consistent with restrictions. Cases such as Association of Orange County Deputy Sheriffs v. County of Orange (2013) 217 Cal.App.4th 29 support the idea that it is management’s right to make changes to procedures for investigating employee misconduct. Agencies may also take advantage of Executive Order N-40-20, issued by Governor Newsome on March 30, 2020, which extended the one-year statute of limitations under Government Code section 3304(d) by 60 days.
The world has changed with breathtaking speed due to the pandemic. California’s police chiefs have responded well, making swift adjustments that protected employees and ensured public safety services continued uninterrupted. As communities emerge from the stay-at-home orders and employees return to work, the moment presents the opportunity for chiefs to assess changes made and those contemplated to avoid and defend against costly and time consuming administrative and legal challenges.
This article was originally published in the Spring 2020 edition of the California Police Chief’ Magazine.