With Spring and Summer approaching, many of your employees will be travelling outside the State for vacation and then returning to work and potentially spreading the virus at work. As explained in Municipal Employers and the Coronavirus – Just the Facts! there is much more to learn about the transmissibility, severity, and other features associated with the Coronavirus and investigations are ongoing.
As a public employer there are many practical and legal issues to consider when deciding whether an employee can return to work after out of state travel. On one hand, public employers must manage and maintain a health, safe and sanitary work environment for all employees. On the other hand, employees have a right to use their vested benefits, like vacation leave, on their own terms without interference from their employer.
What is the best way for a municipality to weigh the rights of the public employer and the public employee?
The key is communication and flexibility.
Although the municipality cannot dictate how employees use their leave or where employees travel outside of work, municipalities can proactively caution employees about the consequences of travelling out of State. This can be done through a memo or policy from the City Manager or governing body which would set (1) explain to employees that the municipality is taking this seriously and the steps being taken by the municipality to reduce the exposure to employees and (2) the potential consequences of employees travelling to travelling while on personal leave. (See sample memo at end document)
The City should use caution when requesting medical information from employees to avoid any issues with the Americans with Disabilities Act. Before questioning an employee about potential exposure or medical conditions, the municipality must have enough facts to determine if there is a reasonable concern that the employee poses a threat to themselves or co-workers.
Have you traveled out of the State or Country?
Have you traveled to a Country with a Level 2 or 3 advisory as defined by the CDC?
Do you have any other reason to believe that you have been exposed to the COVID-19?
If you have been potentially exposed, do you have flu like symptoms?
If an employee can answer any of these questions in the affirmative then the municipality should engage in a process with the employee to determine whether a self-quarantine should be implemented and whether the employee should use accrued leave to cover the absence from work or a possible remote-working accommodation.
Given the uncertainty of the "coronavirus disease 2019" (COVID-19), and the fact that the seasonal influenza (flu) virus is also widespread, the City is taking proactive steps to address a number of business concerns. First and foremost, we want to maintain a safe workplace and encourage and/or adopt practices protecting the health of employees, or others. We also want to ensure the continuity of business operations in the event of a pandemic.
We ask all employees to cooperate in taking steps to reduce the transmission of communicable diseases in the workplace. Employees are reminded of the following:
§ Stay home when you are sick.
§ Wash your hands frequently with warm, soapy water for at least 20 seconds.
§ Cover your mouth with tissues whenever you sneeze, and discard used tissues in the trash.
§ Avoid people who are sick with respiratory symptoms.
§ Clean frequently touched surfaces.
The City will provide alcohol-based hand sanitizers throughout the workplace and in common areas. Cleaning sprays and wipes will also be provided to clean and disinfect frequently touched objects and surfaces such as telephones and keyboards.
Employees are encouraged to use telephone and video conferencing instead of face-to-face meetings as much as possible during this outbreak. IT support services are available to employees who need assistance with this technology.
It is critical that employees do not report to work while they are experiencing respiratory symptoms such as fever, cough, shortness of breath, sore throat, runny or stuffy nose, body aches, headache, chills or fatigue. Employees who report to work ill will be sent home in accordance with these health guidelines. We provide paid sick time and other benefits to compensate employees who are unable to work due to illness.
The City cannot prevent employees from travelling to affected areas for personal reasons, but the City may request that the employee self-quarantine for a prolonged period before returning to the workplace. Employees will be able to use accrued sick leave and/or vacation leave. The City will also consider on a case-by-case basis, requests from employees to work from home. While not all positions are conducive to telework, those positions with primary job duties that can be effectively performed remotely will be given consideration.
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures until some of the issues can be decided by the Legislature or the Courts. You should always consult with your City Attorney before taking any actions based on this guidance. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
