With new COVID-19 (Coronavirus) cases diagnosed each day, both private and public entities are being confronted with the difficult task of crafting policies and response plans in a rapidly changing world. Compounding that difficulty is both a lack of concrete information about the virus and significant misinformation. FBT is working diligently to stay on top of all issues that affect public-sector clients. Below are the latest answers we have to some of the most common and significant questions you are currently facing during this pandemic.
This is a quickly changing situation. Please stay apprised of developments and directives from state and federal authorities.
What is COVID-19?
The CDC defines COVID-19 as “a respiratory illness that can spread from person to person.” The symptoms include fever, cough, and shortness of breath.
What you need to know:
- Does a political subdivision need to declare a state of emergency?
- The States of Indiana, Kentucky, and Ohio have already declared a state of emergency. The World Health Organization (WHO) has declared COVID-19 a pandemic. Each of those declarations brings with it associated measures for the fight against COVID-19—even for local governments. While certain provisions allow for local governments to declare an emergency for a specific reason (e.g. contracts or purchasing to combat the emergency), much of the response public entities can take can be done outside of a specific declaration of emergency.
- Can a public entity close its operations?
- A public entity must provide certain services to its residents. Some, like fire and police protection, cannot be interrupted. In addition, some must be provided within a certain period (e.g. review of a zoning application). That said, a public entity may be able to provide those services with only essential personnel and, therefore, instruct all non-essential personnel to not report to work.
- Can a public entity restrict access to its buildings?
- It is important that deciding to restrict access to buildings not be done in a discriminatory way. The public entity, however, could entirely restrict in-person visits to its buildings and require communications to occur through telephone or email (and ensure that contact information is prominently posted and accessible).
- Can a public entity restrict or require its employees to travel for work?
- Employers can require employees to travel for work reasons. But employers must evaluate any reasonable accommodation requests under the Americans with Disabilities Act (ADA) and whether the employer is meeting its requirements under Occupational Safety and Health Administration (OSHA) to provide a safe workplace.
- Can employers prevent employees from traveling to high-risk areas for personal travel?
- Employers can inform employees in advance that travel to high-risk areas will result in the employee not being permitted in the workplace for two weeks after returning from the trip.
- Can employers send employees home if they appear sick?
- If an employee is sick at work, the employer may send them home and ask that they not return until symptom-free.
- Because COVID-19 has been declared a pandemic, employers can even inquire as to whether employees are experiencing symptoms (though that information is still a confidential medical record under the Americans with Disabilities Act).
- Can employers force employees to use sick and vacation time?
- If the employer follows their policies or agreements and/or communicates with employees in advance.
- If employers send employees home, must the employees be paid?
- It depends.
- Any collective bargaining agreements should be consulted prior to making this determination. In general, if hourly employees do not perform work, they do not need to be paid unless the employee is utilizing paid leave. If a salaried exempt employee works from home or utilizes paid leave, they must be paid. Employers should be cautious about following the Fair Labor Standards Act guidance on paying salaried employees for partial workweeks and during periods of illness.
- If employers require employees to remain home, they can choose to pay employees if they so desire.
- It depends.
- What impact does COVID-19 have on collective bargaining agreements?
- Many collective bargaining agreements provide for midterm bargaining over disputes or emergency situations. That said, there is a need to be able to respond to emergency situations that arise during the term of a collective bargaining agreement and a party can modify an existing collective bargaining agreement due to exigent circumstances that were unforeseen at the time of negotiations.
Purchasing and Contracts
- What impact does COVID-19 have on a political subdivision’s ability to purchase and enter contracts?
- Charter Municipalities –
- Municipalities with their own charters should reference the charter to determine whether, during a time of emergency, formal bidding and advertising may be suspended. If it does not specifically address such measures, council may consider passing a specific ordinance declaring an emergency and establishing provisions for purchasing or entering contracts.
- Statutory Municipalities –
- In Ohio, R.C. 735.051 allows for council, by a 2/3 vote, to authorize entering a contract or purchase without formal bidding and advertising “in case of a real present emergency arising in connection with the operation and maintenance of a department of public service.”
- Townships –
- In Ohio, R.C. 505.08 allows for bidding and advertising to be suspended for contracts and services estimated of $50,000 and less by a unanimous vote on a resolution by the trustees.
- Charter Municipalities –
- Can a public body suspend its public meetings?
- It depends.
- A public body must conduct its business in an open meeting. Certain public bodies are required, either by charter or statute, to meet at certain times or at a certain frequency. Unless the charter or statute provides for a way to cancel a meeting, the public body should meet as required to conduct its business. If not required, the public body can consider canceling a regularly scheduled meeting.
- It depends.
- Can a public body conduct its meeting remotely or via videoconference or teleconference?
- The Open Meetings Act requires that all public bodies meet in person.
- Can a public body prohibit the public from attending its meetings?
- The Open Meetings Act requires that a public body hold all its meetings in the open. The Ohio Attorney General has previously indicated that a public body must allow the public to attend the meeting in person. 2009 Ohio Op. Atty. Gen. 2-230. While you may encourage the public not to attend meetings (and take measures to broadcast the meeting on Facebook, your website, or some other means), completely prohibiting the public would likely violate the openness requirement.
- Does the public body have to meet in its regular place?
- When it is “imprudent, inexpedient, or impossible” to conduct the affairs of local government during a declared emergency in its regular place, R.C. 5502.24(B) allows a public body in Ohio to meet in an alternative location and suspend compliance with “time-consuming procedures and formalities,” which can include the requirements of the Open Meetings Act (especially as they relate to notice). Importantly, the in-person requirement for the public body cannot be waived.