Five Coronavirus Legal Issues for Local Government Leaders
By Adam Rodriguez, Esq.
Local governments are on the front lines of the COVID-19 crisis. Here are a few legal updates and issues that local government leaders need to be aware of.
I. Local Emergency Orders
If you have proclaimed a local state of emergency under Section 24 of Article 2-B of the N.Y. Executive Law, your chief executive officer (Supervisor or Mayor) is authorized to issue local emergency orders to protect life and property or to bring the emergency situation under control.
However, that authority must bow to state and federal law, including Governor Cuomo’s directives on the subject. In order to ensure a uniform and coordinated statewide approach to the COVID-19 situation, and to avoid confusion amongst the public, the Governor ordered (Executive Order 202.5) that all local governments obtain approval from the New York State Department of Health prior to issuing any emergency order under Executive Law § 24.
In accordance with Executive Orders 202.3 and 202.5, approval shall not be granted for any order or portion thereof that is different, inconsistent with, conflicts with, or supersedes any state orders or directives.
In addition, no local emergency order shall be effective, valid, or with legal effect without compliance with the procedures set forth by the Department of Health. It is important to note, however, that the DOH procedures do not apply to the issuance of local State of Emergency Declarations, the renewal of existing emergency orders, or orders that do not affect the public.
Here are the procedures:
- Prior to the public announcement, publication to any news organization, or other public posting or release to the public, every local government must receive approval from the Department of Health after submitting a written request to the email@example.com for review and approval.
- The written request must contain the following information:
a. Name and full contact information of the local chief executive;
b. Draft written copy of the proposed executive order;
c. Method of enforcement; and
d. Date/time the local government seeks to commence any actions contained in the emergency order.
- The Department of Health will review the written request and order and determine whether the emergency order:
a. Is inconsistent with, conflicts with, or supersedes directives or Executive Orders issued by the Governor related to COVID-19; or
b. Otherwise could interfere with the State’s response efforts to COVID-19.
- The Department of Health shall provide a written response to the local chief
executive of its final determination of whether the local government’s proposed emergency order is approved or rejected within 24 hours.
Remember, if you proclaimed a local state of emergency, it only lasts for thirty days (unless renewed), whereas local emergency orders only last for renewable five-day periods. And, don’t forget that the proclamation of a local state of emergency and local emergency orders must be executed in quadruplicate and filed within seventy-two hours or as soon as practicable in the office of the clerk of such local government, the office of the county clerk, the office of the secretary of state and the state office of emergency management within the division of homeland security and emergency services.
II. Governing Board Meetings
Governor Cuomo suspended some provisions of the N.Y. Open Meetings Law that require public access to locations where government meetings are being conducted and allowed members of the public bodies to appear and vote telephonically. Specifically, Executive Order No. 202.1 suspended:
Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.
III. Workforce Reduction & Essential Staff
In Executive Order No. 202.4, Governor Cuomo ordered all local governments to allow non-essential personnel, which must equal at least 50% of total workforce, to work from home or take leave (without accrual charge). Who constitutes “essential” is to be decided by the local government.
However, Empire State Development did issue a guidance document to help define the contours of what was an “essential” business and service under Executive Order No. 202.6. Some examples that are relevant to local governments are: public water and wastewater, telecommunications and data centers, airports, transportation infrastructure, trash and recycling collection, processing and disposal, auto repair, law enforcement, fire prevention and response, and building code enforcement. The guidance document can be found here.
IV. Employee Safety Issues
Local municipalities are governed by the New York Public Employee Safety and Health (“PESH”) Bureau, as it relates to occupational safety. At the time of this writing, PESH has not issued any specific guidance regarding dealing with COVID-19 in the workplace. The Occupational Safety and Health Administration (“OSHA”) has, however, issued guidance on preparing the workplace to deal with COVID-19 by identifying risk levels and determining the appropriate control measures to implement. The complete guidance document can be found here.
As you can imagine, the guidance runs the gamut between basic infection protection measures (e.g., frequent hand washing) to more stringent measures (e.g., personal protective equipment (“PPE”) use). Examples of PPEs include: gloves, goggles, face shields, face masks, and respiratory protection, when appropriate. Whether to use PPE and what type is dependent on the factual circumstances and risk of infection presented to the worker. For more information, here is a link to OSHA’s PPE standards.
In addition, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued a guidance document that deals with a number of COVID-19 related employment issues. For example:
- Employers are allowed to implement temperature screening measures in response to COVID-19.
- Employers are allowed to screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as they do so for all entering employees in the same type of job.
- Employers may withdraw a job offer when they need the applicant to start immediately but the individual has COVID-19 or symptoms of it.
V. Union Issues
Clearly, COVID-19 has presented local governments with incredible workforce and other challenges. Here are some union-related issues to consider:
- Does your Collective Bargaining Agreement (“CBA”) unilaterally allow for the type of flexibility that the COVID-19 response requires, such as staggered shifts, working out of title, and mandatory quarantines?
- Does the CBA have a force majeure or emergency circumstances clause?
- Are your COVID-19 response measures inconsistent with the terms of the CBA? And, if so, are you setting yourself up for meritorious grievances?
- Does your CBA provide a mechanism to force union members to undergo medical diagnostic testing, such as temperature screenings?
- Should you meet with the union to discuss a contractual obligation for union members to disclose if they feel sick, have been exposed to COVID-19, travelled outside the country, tested positive, etc.?
- Should you begin negotiating specific terms for such union members to return to work, i.e., after proof of a negative test?
These are just some of the many union-related issues that are arising all over the country. One of the keys to successfully navigating issues like these can be establishing and continuing a transparent dialog with union leadership.
Adam Rodriguez is Counsel at Bleakley Platt & Schmidt, LLP, a full-service law firm in Westchester County, New York. Mr. Rodriguez focuses his practice in the areas of litigation, intellectual property and real estate. Previously, he was the Director of Real Estate for Westchester County, where he negotiated commercial real estate transactions valued at over $100 million. Prior to his appointment as Director of Real Estate, Mr. Rodriguez defended the County of Westchester in one of the highest-profile HUD enforcement actions in United States history. He has also served as a law clerk to two federal judges, and worked as a litigator at a large law firm in New York City.