LABOR UPDATE: Employers Cannot Force Employees to Use Paid Leave During This Covid-19 (Coronavirus)
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. 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.
The Americans with Disabilities Act (ADA), 42 USC § 12101 et seq., was enacted in 1990 to protect employment opportunities for qualified individuals with disabilities or perceived disabilities. Title I specifically applies to employment, and prohibits public sector employers from discriminating against employees on the basis of disability or perceived disability. Zimmerman v. Oregon Dept. of Justice (9th Cir. 1999) 170 F3d 1169, 1172; see Board of Trustees of Univ. of Ala. v. Garrett (2001) 531 US 356, 368-369, 121 S.Ct. 955, 964-965.
Under the ADA, employers may inquire about or require current employees to undergo a medical examination and/or quarantine to determine whether they can perform their positions’ essential functions of their job in a safe manner, with respect to themselves and other employees. See 42 USC § 12112(d)(4)(A) & (B); 29 CFR Pt. 1630, App. § 1630.14(c). The ADA specifically allows such measures to safe-guard against the severe disruption that would result from infectious diseases being spread through the workplace. Conroy v. New York State Dept. of Correctional Services, (2nd Cir. 2003) 333 F.3d 88.
In addition, all employees are entitled to this ADA protection; i.e., they do not have to be a “qualified individual with a disability.” Fredenburg v. Contra Costa County Dept. of Health Services (9th Cir. 1999) 172 F3d 1176, 1182; Conroy v. New York State Dept. of Correctional Services (2nd Cir. 2003) 333 F3d 88, 94. Most importantly, the ADA requires the employer—not the employee—to bear the financial burden of compelling employees to undergo medical testing, quarantine, or other inquiry into the member’s ability to perform his or her essential functions of the job. Thus, requiring the member to utilize his or her own paid time off, due to employer concerns and employer inquiries about infectious diseases, violates the ADA. This is no different than an employer sending an employee home subject to a regular fitness for duty examination. That employee must be placed on paid administrative leave pending that employer examination, which in this case, involves quarantine. Thus, for a city to enact such a new policy violates the ADA. Consequently, the decision to cease paying that employee (and forcing them to utilize their own accrued paid time off) without any pre-deprivation appeal hearing, violates that member’s Due Process rights under the 14th Amendment.
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.
The MMBA has two stated purposes: (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer-employee relations. To effect these goals it requires that public agencies “meet and confer” with employee organizations before the agencies change ordinances, rules or regulations affecting matters “within the scope of representation . . ..” Government Code
Sections 3504.5 & 3505; Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 657. Changes in existing and acknowledged practices are subject to the meet and confer requirement even if those practices are not formalized in a written agreement or rule. International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 972-973; Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 265; Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 817.
Thus, a City has a mandatory obligation to bargain over this new policy, prior to implementing it.
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.
Adams, Ferrone & Ferrone stands with its first responders, and ready to address any issue that arises on a moment’s notice. 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. For further questions about this issue, or any other, do not hesitate to contact AFF.