172536_CPCA_2020_Spring Magazine - Final | Page 53

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.
Labor Relations
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-athome
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.
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