Covid-19: Update for Public Safety

 

April 14, 2020 – It is not a matter of if, but when, a police officer will come into contact with the Coronavirus in performance of their duties.  Adams, Ferrone & Ferrone (AFF) attorneys are fielding hundreds of phone calls from public safety associations and officers throughout the state, who are all struggling to manage the COVID-19 pandemic.  AFF has further launched a COVID-19 Task Force for Public Safety leveraging the firm’s broad experience and extensive roster of battle-tested legal advisors to assist public safety organizations and members with this unprecedented crisis.

Workers’ Comp-4850 Benefits

If a safety officer, while in performance of his or her duties, is exposed to the Coronavirus, that safety officer should be entitled to Labor Code section 4850 benefits.  L.C. 4850 provides: “Whenever any person listed in subdivision (b), who is employed on a regular, full-time basis, and is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, regardless of his or her period of service with the city, county, or district, to a leave of absence while so disabled without loss of salary in lieu of temporary disability payments.” 

However, COVID-19 is not presumptive. Employers will contend that coronavirus claims are most often not covered by workers’ compensation. The risks of contracting COVID-19, just like contracting other community-wide communicable diseases, are risks of commonalty in general.  In most cases such risks are not particular to or characteristic of any specific employment. In California, as in most states, the employee-claimant has the initial burden of proof by reasonable medical probability that their injury or illness arose out of and occurred during the course of their employment. It is not enough to show that the job created some exposure to a contagious disease.  Instead, the claimant must prove that the workplace exposure was the medically-probable cause of contracting the viral infection. This approach will deny 4850 benefits to the member and they will likely burn their own sick time. 

The one wrinkle that could assist some members who are diagnosed with COVID-19 is the pneumonia presumption. If a member is diagnosed with a pneumonia as a result of COVID-19, our firm is taking the position that the infection is presumptive and would be considered industrial. Since COVID-19 is new to the law enforcement community, this has not been litigated and upheld yet.

Given these dynamics, AFF has recently drafted a legislative bill- Labor Code section 3212.19- that would make COVID-19 Presumptive. Currently, the bill is in draft and being reviewed by the Legislative Counsel. The new law would provide that in the case of certain state and local firefighting personnel and peace officers, the term “injury” also includes CoronaVirus-COVID-19. The injury so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This bill is critical in establishing COVID-19 claims and especially death benefits as work related. 

If the member is exposed and tests positive for COVID-19, they should submit a claim for work comp benefits. Hopefully, the agency will immediately accept the claim and pay 4850 benefits. If the claim is delayed, the member will need to utilize sick time.  Some agencies are providing additional leave benefits-80 hours of sick time to address the issue. 

Employers Cannot Force Employees to Use Paid Leave During COVID-19

The most common question that is arising is whether an employer may unilaterally implement a new policy, requiring union members to quarantine away from work, all while footing the bill.  In other words, our first responders are told to go home and quarantine and utilize your own paid time off, rather than receive regular full pay and benefits. 

AFF believes that this policy is illegal, in that it violates the Americans with Disabilities Act (ADA), the Meyers-Milias-Brown Act (MMBA) and the 14th Amendment (Due Process).  In addition, it is a short-sided and dangerous business practice, that will only lead to low morale amongst our first responders.  

Further, the decision to alter the way members are paid their regular salary, and to compel utilization of paid time off instead, is a matter within the scope of representation under the state collective bargaining statute, the Meyers-Milias-Brown Act (MMBA).  The Public Employment Relations Board (PERB) has repeatedly held that items such as leave time are within the scope of representation.  Sacramento City Unified School District (1982) PERB Dec. No. 216.  In addition, since this modification involves wages, in that the employee isn’t receiving regular wages for hours worked, it involves specific enumerated items (wages & hours of work) from the collective bargaining statute.  

Under the MMBA, a city is required to meet and confer in good faith with the recognized bargaining unit on all matters within the scope of representation.  Further, the unilateral changing of working conditions is a per se violation of the MMBA.  Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 823.  It is widely known that the status quo cannot be unilaterally changed without prior bargaining, which includes both terms established by a memorandum of understanding and past practice.  California State Employees’ Assn v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 934-935.  The PERB has routinely condemned such unilateral actions stating that they de-stabilize employer-employee affairs, denigrate the representative’s negotiating power and ability to perform as an effective bargaining agent in the eyes of the employees, undermine exclusivity, and denigrate the statutory sanctions for negotiations.  San Mateo CCD (1979) PERB Dec. No. 94.   

Finally, forcing first responders to subsidize their own quarantine through the usage of their own accrued time off is a short-sided business practice that will lead to dangerous results.  Such a policy will inevitably force all employees to assess their own medical condition, while at the same balancing that against the status of time banks. An employee who has little accrued time off, and who is “not that sick”, may err on the side of going to work.  In the current situation, there should be no barriers to first responders receiving paid time off to manage their health. After all, it is not just their health at issue; rather, it is the health of them and the hundreds of people they come in contact with on a daily basis

Protocol on Internal Affairs Investigations

AFF has been leading the charge by developing safety protocols to be used during any internal affairs investigations. On March 10, 2020—the day before the World Health Organization declared the coronavirus to be a global pandemic—AFF crafted a detailed a protocol outlining pre-emptive safety measures that Departments and Members, as well as all participants, must engage in when attending any internal affairs investigations.  The protocol was first delivered to the Orange County Sheriff’s Department (OCSD), who adopted the protocol, and continues to follow to this date. In addition to OCSD, AFF has delivered this protocol to all of our clients and their departments as a guide to ensure the safety and well-being of their members during internal affairs interrogations.

Specifically, the protocol recommends video conferencing for all internal affairs interrogations as a primary means to carry out the interrogation.  Video conferencing is also available for Skelly hearings, depending on the nature of the case and the severity of the allegations.  If these options are not available or practicable, the protocol outlines practices and procedures for carrying out internal affairs interrogations during the COVID-19 pandemic. A few of the highlighted procedures include completely sanitizing the interrogation room prior to interrogation, social-distancing between the parties during the interrogation, avoiding all physical contact and finally a secondary complete sanitizing of the interrogation room once the administrative interrogation is completed. 

Additional Considerations- Meet and Confer for COVID-19 Benefits

Bargaining units should engage the agencies in a meet and confer negotiations on the COVID-19. Here is an example of a draft:

Safety members of the Association are first responders, who are required to work in the public and institutional environment, and respond to people in need, many of whom may be contagious and could expose Association members to illness or death.  To protect our first responders and Association members, and to ensure that they are able to perform their job functions without fear or hesitation, the Parties have reached the following agreement:

  1. COVID-19 shall constitute a presumptive work-related injury.
  2. 4850 benefits shall be provided for all employees who contract COVID-19.
  3. Reasonable accommodations (including telecommuting) shall be provided for employees in high risk groups, including but not limited to the following: adults over 60; pregnant employees; and/or anyone with an underlying health condition as defined by the CDC or compromised immune system.  The County will send an education notice to all AOCDS bargaining unit members identifying categories of high-risk groups and informing all members that for those in a high-risk category, accommodation may be available through the interactive process.  
  4. Telecommuting shall be allowed for all employees who can work from home. 
  5. Employees shall be allowed to utilize accrued leaves if they wish to self-isolate and may use sick leave before AL or Vacation.
  6. Employees who exhaust leave balances shall be advanced an additional 80 hours of sick leave.
  7. Employees shall be placed on paid administrative leave if ordered home or quarantined after an exposure, until confirmed to have contracted COVID-19 or cleared to return to work by a medical professional.
  8. A hotel or other designated-quarantine site shall be provided at the County’s expense if quarantined.  The accommodation shall be within a reasonable distance of an employee’s residence.