Emergency Response

Liebert Cassidy Whitmore attorneys are advising public sector clients about how to supervise employees who are afraid.

"One of the big things, more so than just people getting sick, to the bravest of the brave -- the firefighters and the police officers -- is managing their fear around it, and it's not fear for themselves," said J. Scott Tiedemann, the firm's managing partner. "It's the fear about having it, not knowing that they have it and bringing it home to their kids."

A question Tiedemann said he receives regularly from emergency service clients is, Can I make an employee who's scared to come to work show up? Tiedemann's answer is "Yes, we have to."

"It's the balance that we're trying to strike between doing the right thing for employees and protecting employees, and at the same time, making sure that the public can count on the employees providing the services that are required," Tiedemann explained.

He said, for example, police departments are changing the hours their officers work to adjust to the demand for emergency services as well as the supply of healthy officers. Tiedemann said he talks every day with police chiefs and departments across Los Angeles County and the San Gabriel Valley about the real-time public safety issues officers are facing.

"I started to get calls from police departments that had officers who were testing positive for COVID, and they asked, 'What do we do now?'" Tiedemann recalled, noting he walked them through identifying when the officers were last at work and with whom they had contact.

That process led to Tiedemann and another Liebert Cassidy Whitmore partner developing a flowchart of who to contact when these cases come up because sometimes human resources is not available during off hours. The firm published the chart for all its clients, which includes 70% of California's public agencies, he said.

"It's as close as I think I can feel to practicing law in an emergency room setting," Tiedemann said. "You can't say, 'Well, let me research this, and I'll get back to you in a week and a half' because they actually need the information in that minute."

Peter J. Brown

Reacting quickly to meet an unprecedented crisis can be even more challenging for public sector clients who still need to answer to union negotiators, said Steven M. Berliner, chair of the firm's retirement, health and disability practice group.

"That is a big deal because sometimes negotiations can last for months because there are so many requirements and there are so many parts of the procedure that the public entities have to follow, and they're built into the law," Berliner said.

A big issue public sector clients are facing is reduced revenue, according to Peter J. Brown, chair of the firm's labor relations and wage and hour practice. He pointed to, for example, reductions in sales taxes and parking fees that pay the salaries, benefits and pensions of public employees.

"As a result of this pandemic, the likely impact this will have on the cost of public employee pensions is dramatic because the public employee pensions are funded by a pension fund that's invested in the stock market," Brown said. "What's going to happen to a lot of these agencies, depending upon how long it goes on, is a dip in revenue and an increase in expenditures, especially related to paying for pension costs."

It's not easy advising clients on what to do about these financial problems, Berliner said, but ultimately layoffs are put on the table. Layoffs still must be negotiated with unions or employee groups because at-will employment isn't an assumption in the public sector as it is in the private sector.

"My experience is when you present the option that layoffs are a possibility, generally the employee groups will talk and see if there's something less draconian that they can agree to," Berliner said.

For example, he said contracts that normally have salary increases built in might have those raises deferred rather than face layoffs.

Tiedemann said he expects to see layoffs at some public agencies. One client has a required 60-day notice for layoffs, and those that must give advance notice might soon start doing so, he said.

"Everybody's just kind of getting used to this strange environment that we're in, and they're scared," Tiedemann said. "The city's not sure that it's going to have to lay anybody off, but in order to be able to do the layoff at the point that it may need to, I have to give them two months time. We may begin to see agencies that have those longer layoff notice requirements giving those types of notices in the coming weeks."

Public agencies also aren't supposed to unilaterally reduce hours to save money without consulting employee groups, under the Meyers Milias Brown Act, which Tiedemann said covers most of the public sector.

Steven M. Berliner

"A public agency ... may be doing that because of the emergency, but the unions may say, 'Wait a minute, how can you change your hours like this without even sitting down to talk with us? Hours are at the very heart of what you have to negotiate, and you're changing that, and you're not asking us about it.'" Tiedemann explained.

Staying abreast of regulations and guidelines from cities, counties, the state and the federal government has been a challenge, Berliner said. With information changing week by week, he said it's difficult to keep clients informed.

"On March 6th, we put out our first special bulletin on this COVID-19 issue. That might as well be carved in stone it's so old," Berliner said. "Everything has changed."

The firm conducts webinars that have been seen by hundreds of people, and his email inbox is always full of questions. When he responds, Brown said he has to remind clients that the information he's giving could change quickly.

One change has been an agency's ability to conduct medical examinations, like taking employees' temperatures as they enter a building, Tiedemann said. Government entities including the California Department of Fair Employment and Housing and the Emergency Operations Center of the U.S. Department of Labor have posted guidelines changing those rules.

"In 2019, and in the first three months of 2020, if you asked any of us, 'Can you do that?' No, you can't do that," Tiedemann said of taking employee temperatures. "Ask us today. Yes you can."