Loading...
LTC 202-2020 Mandatory COVID-19 Testing for City EmployeesM IAMI BEACH OFFICE OF THE CITY ATTORNEY LTC No. TO: FROM: 202-2020 LETTER TO COMMISSION Mayor Dan Gelber and Members of the City Commission Rau J. Aguila, ciy At«tore ) CL55 Aleksander Boksner, Chief Deputy City Att6[@@<- , () Robert F. Rosenwald, Jr., First Assistant Cit) ·1Q¿wwl DATE: June 4, 2020 SUBJECT: The City's Authority to Require Mandatory COVID-19 Testing for City Employees INTRODUCTION Several City Commissioners made inquiries of the City Attorney's Office at the May 22, 2020 Special City Commission meeting, regarding the legality of mandatory COVID-19 testing for City employees, as a condition of working or returning to work at City Hall and other City properties in the coming weeks. In sum, this Memorandum concludes that the City does have the power to impose mandatory COVID-19 testing, as it relates to City employees (i.e., for purposes of this Memorandum, the term "City employees" shall include the City's unclassified employees, classified employees, and First Responders [i.e. "First Responders" shall include Police Officers and Fire Fighters]). Support for the City Attorney's conclusion, based on the facts and applicable case law as they stand today, is more fully set forth below. I. May the City require City employees to undergo COVID-19 testing and, if so, can the City require employees to disclose the results? The Equal Employment Opportunity Commission ("EEOC") issued new rules in April of 2020 that explicitly permit employers to test for COVID-19 as a condition of entering the workplace. This is based upon the federal government's conclusion that employees who are positive for COVID-19 present a direct threat to the health 1 a n d sa fe ty of th e ir co w o rke rs.1 The federal Food and Drug Administration ("FDA") and the Centers for Disease Control ("CDC") have issued similar guidance for reopening businesses. 2 The one caveat is that employers must either test all employees or, if only certain employees are selected for testing, the employer must have a reasonable justification for doing so. For example, it would likely be reasonably justifiable to test employees who exhibit persistent coughs, fever, or other symptoms associated with the virus. Therefore, as an example, the City Manager could lawfully require a swab test of each City employee, prior to reopening and as a condition of the employee coming back to work. A City employee who refused to take a test, or refused to disclose the results, could at the City's election, be sent home, without pay, until the employee complied. II. Are there any additional or different rules regarding mandatory COVID-19 testing that apply to public employers versus private employers? In addition to state and federal nondiscrimination statutes, public employers must satisfy the Fourth Amendment of the United States Constitution when conducting searches of employees. However, although a COVID-19 test is considered a "search" subject to the Fourth Amendment and the analysis is different, the result is the same: public employers may require COVID-19 testing of employees without violating the Fourth Amendment. A. Fourth Amendment analysis generally. The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and 1 See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and- other-eeo-laws. 2 For example, per FDA guideline found at https://www.fda.gov/medical-devices/emergency-situations- medical-devices/fags-testing-sars-coy-2, , [E]mployers may take steps to determine if employees re-entering the workplace have COVID-19 because an individual with the virus poses a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. The CDC guidance is located at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance- business-response.html?CDC AA ref/al=http$%3A%2F%2Fwy.cdc.goy%2Fcoronavirus%2F2019- ncoy%2Fspecific-groups%2Fguidance-business-response_html. 2 perso ns or things to be se ized . U .S . C onst., A m e nd . IV . T he Fo urth A m e ndm e nt applies to the states thro ug h the Fo urt eenth A m e ndm e nt, and ha s also bee n app lied to cover the conduct of govern m e nt off icia ls in vario us civil activitie s. O'Connor v. Ortega, 480 U.S. 709, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987). Public employers are subject to the constraints of the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685 , 109 S. Ct. 1384 (1989); O'Connor, 480 U.S. at 717. The Fourth Amendment does not prohibit all searches, only those that are unreasonable. Schmerberv. California, 384 U.S. 757,768, 86 S. Ct. 1826, 1834, 16L. Ed. 2d 908 (1966). The Fourth Amendment is implicated in a case only if the plaintiff can show that the conduct of the defendant has infringed on an expectation of privacy that society is prepared to consider reasonable. The determination of the reasonableness of a search requires balancing the need to search against the invasion that the search entails. On one side of the balance is placed the individual's legitimate expectations of privacy; on the other, the government's need for effective methods to deal with legitimate governmental interests. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 103 L. Ed. 2d 639 , 109 S. Ct. 1402 (1989). A determination of the standard of reasonableness for the search requires a balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the government interest alleged to justify the intrusion. O'Connor, 480 U.S. at 719-20; Skinner, 489 U.S. at 619; Glover v. Eastern Nebraska Commentary Office of Retardation, 686 F. Supp. 243 (D. Neb. 1988), affd 867 F.2d 461 (8th Cir. 1989), cert. denied, 493 U.S. 932,110 S. Ct. 321,107 L. Ed. 2d 311 (1989). Under this standard, both the inception and the scope of the intrusion must be reasonable. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. O'Connor, 480 U.S. at 726; Von Raab, 489 U.S. at 656. One of the touchstones of the Fourth Amendment is that a search must be supported by a warrant issued upon probable cause. However, when a Fourth Amendment intrusion serves a special governmental need, it is necessary to balance the individual's privacy expectations against the government's interest to determine whether it is impractical to require a warrant or to require some level of individualized suspicion in the particular context. Anonymous Fireman v. Willoughby, 779 F. Supp. 402, 414-416 (N.D. Ohio 1991) Where privacy interests implicated by the search are minimal and the governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search can be reasonable despite the absence of such 3 su s p ic io n . Id. Courts have held that a governmental employer need not show evidence of individualized suspicion in order to conduct drug or alcohol testing. Skinner, supra, and Von Raab, supra. Additionally a federal district court found that the public employer need not show individualized suspicion before requiring HIV testing of First Responders as a condition of their employment. Anonymous Fireman, 779 F.Supp at 414-418. B. Applying these rules to mandatory COVID-19 testing of public employees demonstrate that public employers may conduct mandatory COVID-19 testing of all employees. As set forth earlier in this Memorandum, mandatory COVID-19 testing of public employees may be held to be a "search" under the Fourth Amendment, but the above analysis would almost certainly still support the legality of such search. The reasoning of the previously cited case law is equally applicable in the current COVID- 19 pandemic. First, the governmental intrusion occasioned by a nasal swab test (which the City has deemed to be a satisfactory means of testing) is minimal. As the U.S. Supreme Court has stated, with reference to the more intrusive blood test at issue in that case, the" ... intrusion occasioned by a blood test is not significant, since such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma or pain." Skinner, 489 U.S. at 625. Skinner thus confirmed "society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity." Id. Moreover, public employers have compelling interests in ensuring that members of its workforce do not pose a direct threat of COVID-19 infection to every other member of the workforce and the public. Therefore, reasonable and particularized suspicion is not necessary as a precondition to mandatory COVID-19 testing. Penny v. Kennedy, 915 F.2d 1065 (6th Cir. 1990); Anonymous Fireman, 779 F. Supp. at 418. In sum, mandatory COVID-19 testing of City employees would likely not be held to violate the Fourth Amendment.3 Ill. Are there any additional or different rules regarding mandatory COVID-19 testing that apply to classified employees versus unclassified employees? As set forth above, the City can require mandatory COVID-19 testing for unclassified 3 This analysis applies even more strongly in the case of mandatory COVID-19 testing of First Responders. The fire and police professions are among the most highly regulated of any industry with respect to the performance of their employees. Penny, 915 F.2d at 1065 (Wellford, J., concurring). "The expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part on the health and fitness of covered employees." Skinner, 489 U.S. at 625. 4 employees. The City may likely also (unilaterally, if necessary) require mandatory COVID- 19 testing of classified employees. However, notw ithstanding the presiding sentence, the City may need to bargain over the impact of such a rule after unilaterally im plementing it, if a union with a collective bargaining agre ement ("CBA") in force requested it.4 If the City wishes to impose mandatory COVID-19 testing which will include classified employees, our recommendation would be that the City Manager notify the City's collective bargaining units of the mandatory testing before implementing it. A. The City's duty to bargain and the exception in emergency circumstances. Generally, an employer has a duty to bargain with a union before making changes to represented employees' terms and conditions of employment (which includes tests like, for instance, drug tests). However, an employer may take unilateral action without bargaining with a union when exigent or emergent circumstances exist. The National Labor Relations Board's ("NLRB") General Counsel has issued Memorandum GC 20-04, containing guidance for union employers relevant to COVID-19-prompted unilateral changes to the terms and conditions of a union employee's employment.5 Citing Bottom Line Enterprises, 302 NLRB 373, 37 4 (1991), GC 20-04 explains that an "exception to the duty to bargain exists where the employer can demonstrate that 'economic exigencies compel[led] prompt action."' The exception is applied narrowly and is limited to extraordinary and unforeseen events that have a major economic effect requiring prompt action. RBE Electronics of S.D., 320 NLRB 80 (1995). Despite the NLRB construing the exception narrowly, the cases summarized by the General Counsel show that the NLRB has sanctioned unilateral action in the face of other emergencies. For example, in Port Printing & Specialties, 351 NLRB 1269 (2007), the employer unilaterally laid off employees, a mandatory subject of bargaining, due to emergency circumstances created by Hurricane Rita. The NLRB found that the exigent circumstances surrounding the approaching hurricane and the mandatory city evacuation privileged the employer's unilateral action. Likewise, in K-Mart Corp., 341 NLRB 702 (2004), the administrative law judge ("ALJ") found that the employer's layoff due to a 60% drop in business on the heels of the September 11, 2001 terrorist attacks constituted "extraordinary unforeseen events having a major economic effect that required the employer to take immediate action" sufficient to excuse bargaining. Therefore, the COVID-19 emergency likely allows the City to unilaterally impose 4 Pursuant to terms in their CBAs, the City Manager suspended the CBAs of all of the City's unions except police and fire due to the COVID-19 emergency. Only the CBAs of the police and fire unions remain in effect at his time. In an abundance of caution, however, we recommend that pre-testing notice be provided to all unions. 5 The City's relationship with its collective bargaining units is governed by the Public Employee Relations Commission's (PERG) interpretation of Florida's Public Employee Relations Act (PERA). PERA is modeled after the federal National Labor Relations Act (NLRA) and PERG closely adheres to the National Labor Relations Board (NLRB) interpretation of the NLRA. 5 m a n d a to ry C O V ID -19 te stin g of cl a ssifie d e m p lo y e e s . B. The City may still be required to bargain over the effects of the mandatory testing, if requested. This Memorandum cautions that, while unilateral action may be permissible, an employer still must bargain over the effects of its actions even in emergent situations. Tellingly, while the NLRB sanctioned the unilateral layoff in Port Printing (discussed above), the employer's failure to bargain over the effects of the layoff was a violation of the NLRA. The memorandum also summarizes two cases in which the Board found an employer's refusal to bargain over the effects of closing its business was unlawful, despite noting that the employer may not have been obligated to bargain over the decision to close due to terminated lines of credit. The City should likewise be wary of continuing exigent action after the exigency has passed. In Port Printing, the NLRB found that the employer violated Section 8(a)(5) of the NLRA when it used non-bargaining unit personnel to perform bargaining unit work after the exigency had dissipated. C. Unilateral action and core business purpose. Despite the absence of any overt direction on the issue, the General Counsel's summary of Virginia Mason Hospital, 357 NLRB 564 (2011), may provide a glimpse into the General Counsel's views on unilateral action in response to COVID-19. In Virginia Mason, the hospital unilaterally implemented a policy requiring union- represented nurses who did not receive a flu shot to either take antiviral medication or wear a protective mask. The ALJ found that the employer was relieved from bargaining over the policy under Peerless Publications, 283 NLRB 334 (1987), because the policy (1) went directly to the hospital's core purpose of protecting and curing patients, (2) was narrowly tailored to preventing the spread of the flu in the hospital, and (3) was limited to registered nurses who refused to receive the flu shot. The NLRB reversed the ALJ, however, and limited Peerless Publications to the facts of that case because of the First Amendment considerations at issue. Notable for employers is the General Counsel's attention to NLRB member Hayes' dissent rejecting the majority's narrow interpretation of Peerless Publications. Hayes explained that the Peerless test set forth the broad, general terms of when an employer may unilaterally establish rules that are designed to protect the "core purpose" of the employer's enterprise. In Hayes' view, the hospital's implementation of a flu-prevention policy was aimed at its core purpose of preventing the spread of the virus to other hospital patients. Id. IV. Practical issues to consider if the City proceeds with testing employees. While this Memorandum concludes that, under the parameters set forth herein, the City is permitted to require COVID-19 testing for City employees as a condition of 6 re p o rt in g ba c k to w o rk at C ity H a ll o r oth e r C ity fa c ilitie s , th e fo ll o w in g pra c tic a l co n s id e ra tio n s m a y be co n s id e re d :6 A. Accuracy/Prevention. The accuracy of many of the available tests remains in question. Therefore, a "one- time" testing requirement is not a guarantee that the City will get accurate information. Moreover, because of the manner in which COVID-19 is acquired, an employee who is negative on Monday could encounter someone positive on Monday evening and then acquire COVID-19. Said another way, unless negative employees self-quarantine, there is no way to prevent acquiring COVID-19. More to the point, someone newly infected may not show a positive result on a test for several days and as stated above; employees can obviously also get infected following a test. It also takes at least a day to get results back, giving the virus 24 hours to spread unchecked. In such cases, periodic testing (i.e., every 30 days) may be an option. B. Confidentiality. Testing on such a large scale may create confidentiality issues. Employee medical information needs to be kept confidential. To that end, the City would need to ensure that the test records for every employee are not released to anyone not authorized access. The EEOC's guidance also sets forth that the City needs to remember that the ADA requires that all medical information about employees must be stored separately from their personnel file, and limit the access to this confidential information. The EEOC explains in question B.1. that employers may maintain all medical information related to COVID-19 in existing medical files (employers do not need to create new COVID-19 files). These medical files would include an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms. C. Limited testing plan as an alternative. The City could implement limited testing. Specifically, the City could ask employees returning to work the following questions: Do you have any of the following? □Fever 6 While addressing these "practical considerations," this Memorandum takes no position as to the decision to require mandatory COVID-19 testing or not. That is a policy matter and not within the scope of this inquiry. This Memorandum is only intended to address the question as to whether the City can legally require COVID-19 testing prior to City employees reporting back to work at City Hall or other City facilities, and the legal considerations and requirements associated with same. 7 □Shortness of breath (not severe) □Cough □Chills □Repeated shaking with chills □Muscle pain □Headache □Sore throat □New loss of taste or smell Are you ill, or caring for someone who is ill? Have contact with someone diagnosed with COVID-19? Live in or visit a place where COVID-19 is spreading? If employees answer yes to any of the above, the City could test those employees. CONCLUSION In sum, new federal regulations from multiple agencies uniformly conclude that the City may permissibly require COVID-19 testing of its employees during the present health emergency, as a condition of returning to work at City Hall or other City facilities. There are, however, logistical concerns with legal ramifications associated with mandatory testing. Therefore, if mandatory testing is adopted, we suggest that the City Administration maintain close consultation with labor and employment counsel in the City Attorney's Office, should questions or issues arise as the process unfolds. 8