Insights

COVID-19 NON-ESSENTIAL GOVERNMENT OFFICES

March 23, 2020

On March 16, 2020, Governor Wolf issued an order for all “non-essential government offices” to close as of March 17. Unfortunately, the Governor did not provide many additional details as to which “offices” should be considered non-essential (although residents will be glad to know that trash collection should continue uninterrupted). As such, we suggest municipalities take the following steps: 

    1. The governing board and staff should hold an emergency meeting to begin to develop a coronavirus emergency response plan. You should also include your emergency management coordinator in the meeting. We are attaching a publication put out by PMAA on some things to consider in an emergency response plan for the coronavirus.

    2. Municipalities should, if possible, cancel or postpone any public meetings scheduled for the next two weeks. Boards should remember that deadlines for action are not automatically extended to the crisis, so time waivers should be requested if needed. We believe the Board may make this decision by majority vote either through email or by an emergency meeting of only municipal officials. Notice that a meeting is canceled or postponed should be posted at the municipal building, posted on the website and social media (if applicable), and announced to local TV and radio stations (similar to closures due to weather emergencies). If the meeting is being postponed to a date other than the next regular meeting date, the postponement and rescheduled date must also be advertised in the newspaper at least 24 hours in advance of the rescheduled meeting date.

    3. Alternatively, if you must meet to conduct essential business, you may want to call an emergency meeting (for critical business) or limit meetings to only the essential business and accept written reports from staff to reduce attendance. Public comment may be limited to only the action items on the agenda. Municipalities may also holding meetings via conference call or other virtual means. We are circulating a separate memo to address that issue under the Sunshine Act.
    4. Based upon the recommendations from the CDC, OSHA, and Governor Wolf, we recommend municipalities implement procedures for closing the offices to the public, canceling in-person staff meetings or meetings with vendors in exchange for telephone or video conferencing, rotating in-office staff so that there are never more than 10 employees present at any one time, and implementing social distancing guidelines of keeping at least 6 feet from others at all times. This is not an exhaustive list of recommended actions— municipalities should feel free to consider the specific nature of their offices to determine how they can both complete the necessary governmental functions while limiting direct contact with others that may increase the likelihood of spreading the virus.

    5. Employees should be limited to essential staff. Identify which employees have in the past been considered essential during weather emergencies. Although the current situation has some significant differences from a weather emergency, using past practices should give municipalities a good baseline place to start for determining which employees are to be considered essential. The most obvious example of an essential office is the police department. However, within the police department, there may be certain tasks/services that can be performed remotely or postponed that should be considered (see more below).

    6. The Governor’s order permits the continuation of outdoor construction activities (with proper precautions being observed), so road and water/sewer crews may continue to work on such construction projects as needed. If the crisis has created less work for the crews such that furloughs and/or wage reductions may be required, we suggest contacting your labor attorney or our office to help ensure compliance with any relevant wage-hour laws under FSLA and any collective bargaining agreements.

    7. Relatedly, although office staff may not normally be considered essential during weather emergencies, because of the extended nature of the current crisis (a minimum of at least 14 days), certain staff may be considered essential for a day or two a week in order to perform necessary payroll or billing tasks. Each municipality will have to evaluate its current work structure and use its best judgment in making these determinations. Helpfully, at this point, the state will not be enforcing the order; rather, everyone is being asked to “self-enforce” the order. As noted above, if the crisis has created less work for the office staff such that staffing furloughs and/or wage reductions may be required, we suggest contacting your labor attorney or our office to help ensure compliance with any relevant wage-hour laws under FSLA and any collective bargaining agreements.

    8. In addition to the consideration of essential vs. non-essential employees, based upon the recommendations from the Centers for Disease Control and from Governor Wolf, employees are being asked to work from home whenever possible. If your municipality is equipped to have staff work remotely, we suggest this to be done to the extent possible. If/when essential employees must go to their respective offices, OSHA has put forth guidelines (see below) that should be followed to maximize employee safety and to minimize the risk of transmission of disease. Although the guidelines do not create any “new legal obligations”, municipalities should be aware that, as an employer, they always have an obligation to “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm”.
    9. We are attaching guidance recently issued by OSHA for COVID-19 for your more careful review. In summary, the guidance contains the following main sections:
      1. Information on COVID-19 and its transmission. 
      2. Information about how an outbreak could affect places of work. 
      3. An extended section on steps employers can take to reduce employee risk of infection. This section is especially practically important because it urges employers to review and implement various work plans and standard operating procedures to limit or prevent disease transmission. These include the following: 
        1. Disease preparedness and response plans.
        2. Basic disease prevention measures.
        3. Policies and procedures for prompt identification and isolation of sick people.
        4. Implementation of workplace flexibilities and protections such as encouraging sick employees to stay home, not necessarily requiring doctor’s notes for certain employee illnesses to prevent strain on the healthcare system, etc.
        5. Implementation of certain workplace controls as appropriate (avoiding where possible close working environments, wearing masks or other personal protective equipment, etc.).
        6. Identification of various risk levels for employees and implementing policies and procedures to minimize risk of infection where possible.

    10. Emergency meetings of municipal officials may be called as necessary to conduct essential business because the state of emergency declaration relates to a health crisis that does present a clear and present danger to life or property. Only essential business should be conducted in emergency meetings.

    11. Finally, we suggest each municipality continue to monitor the situation as the directives from the government have been changing rapidly as the crisis evolves. At this point, the Governor’s order asks for voluntary cooperation, but depending upon the progression of COVID-19, enforcement measures could be implemented at any time. We will continue to monitor the situation and will provide updates as necessary.

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters.

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