As local governments prepare for the effects of COVID-19, it is important to recognize some of the legal challenges and implications presented by the virus for our communities. Here are some questions and answers designed to help you spot the concerns and be prepared for the impacts. Please keep in mind that we are a resource as you navigate the novel issues during this public health emergency.
Question: What do the Governor’s Executive Order No. 20-51 establishing COVID-19 response protocol and directing a public health emergency and the State Surgeon General’s Declaration of Public Health Emergency mean for Florida’s local governments?
Answer: These orders provide procedures for responding to the emergency created by COVID-19. The Department of Health is the lead state agency coordinating emergency response activities among state agencies and local governments. See Section 381.0011(7), Florida Statutes. The public health emergency allows the State Surgeon General to take actions that are necessary to protect the public health. See Section 381.00315, Florida Statutes. These actions may include declaring, enforcing, modifying, or abolishing the isolation and quarantine of persons, animals, and premises.
Question: What do these orders mean for local law enforcement agencies?
Answer: Any Department of Health order issued pursuant to Section 381.00315(4), Florida Statutes, is immediately enforceable by a law enforcement officer. See Section 381.00315(4), Florida Statutes.
Question: Do these orders also bind other local officials?
Answer: Yes. Appropriate city officials also have a duty to assist the Department of Health and its agents with enforcement. See Section 381.0012, Florida Statutes.
Question: What about the impact of this emergency on our municipal employees?
Answer: Taking a proactive approach and keeping an open dialogue with employees can help municipalities to manage this stressful period effectively. Here are our top readiness tips for coping with the creeping cloud of COVID-19:
- Communicate early and often. Send internal communications to the workforce on a regular basis and remind employees that their health and safety is of utmost importance. Internal communications may include an explanation of the signs and symptoms of COVID-19, the latest updates on COVID-19 from the Center for Disease Control (“CDC”) and tips from the CDC on preventing the spread of germs and bacteria that could lead to other illnesses, such as the flu or the common cold. If your healthcare program includes a nurse hotline, doctor-on-demand, and/or an employee assistance program, now is a good time to reiterate the availability of these resources.
- Create a healthy environment. Although it may sound obvious, municipalities should be taking necessary measures to promote a sanitary work environment. Encourage hand washing (for at least 20 seconds), provide plenty of soap and hand sanitizer, and ensure that your cleaning crew is engaged and well stocked.
- Promote remote work and/or alternate work arrangements. As the probability increases that your employees may need to stay home, it is important to ensure that the municipality can remain operational. Develop methods of operating the critical components of the municipality on a remote basis if possible, and ensure that the methods that you currently have in place are up-to-date and functional. If you operate in a unionized environment, familiarize yourself with the existing rights established under any applicable collective bargaining agreement(s) (or past-practices) that might affect the ability of bargaining unit employees to work remotely. All requests received from personnel to work remotely should be treated in a consistent and non-discriminatory manner, while keeping in mind the particular employee’s request; any known or disclosed medical condition(s); your established sick leave policies and any applicable rights created under a bargaining agreement(s); and the employee’s position and job responsibilities.
- Disclose exposure. If an employee discovers that they have been exposed to someone who has been diagnosed with COVID-19, they should call ahead to human resources (before coming to city hall) to report this information. However, it is important to maintain the confidentiality of employees’ health-related information. HIPAA remains in effect, notwithstanding any health crisis.
- Sick employees should stay home. To the extent your employees feel ill, they should err on the side of not reporting to work where they could potentially expose others. Remind employees of your established procedures for calling out sick. If an employee is unable to reach his/her initial contact, they need to be aware of the next step in communicating their out-of-work status to human resources.
- Travel precautions. If your employees are required to travel to locations where there have been confirmed cases of COVID-19, you should consider whether such travel is necessary and/or take steps to provide additional support to such employees.
- Plan ahead for less-likely scenarios. Although it may seem unlikely, consider the possibility of temporary closure of the workplace, and prepare an advance plan for the implementation of corresponding procedures.
Question: Are the requirements of the Sunshine Law affected by this emergency?
Answer: Section 286.011, Florida Statutes, requires that all municipal governing body meetings be open to the public. The Florida Attorney General’s Office has consistently interpreted this statute to require the physical presence of a quorum of the members of the local governing board. See Florida AGOs 92-44, 98-28 and 2003-41. In-person local governing board meetings may conflict with future directives from Federal, State or County health officials and could potentially promote further community spread of COVID-19. In light of this, our Firm has requested that the Governor order a limited emergency exemption from Section 286.011(1), Florida Statutes for those communities directly affected by COVID-19, so that a virtual meeting can be held via a teleconference or webinar that is open to public. Click here to view our letter sent to Governor DeSantis.
Question: What about the right to public comment at public meetings?
Answer: Section 286.0114, Florida Statutes, governs the right of the public to be heard at public meetings, and has a limited exception to the right to public comment in certain emergency situations.
Question: How might this emergency affect parks and public facilities?
Answer: Local governments should plan for potential closures of public facilities, parks, golf courses, and beaches. Issues include when to implement closures, how to enforce them, and how to provide notice to the public of the closures – and of the subsequent re-openings. It may be that special events will need to be canceled; accordingly, permits, licenses and rental agreements should be reviewed and any cancellation clauses followed.
Question: What are some recommendations for how to handle mass gatherings in this emergency?
Answer: The World Health Organization’s key planning recommendations for mass gatherings in the context of the current COVID-19 outbreak are at this link. The CDC Guidance on Mass Gatherings or Large Community Events is at this link.
Question: Could the emergency affect the enforceability of government contracts?
Answer: The relevant contractual clauses, such as force majeure, should be interpreted in consultation with the municipal attorney. Particularly important are contracted essential services such as waste management, recycling, building department functions, planning departments, transit and micro-transit services, landscape and general maintenance.
Question: Where can I look for additional information?
Answer: Here are some links to various sources of information about COVID-19 and Florida’s response to it.
- World Health Organization
- Centers for Disease Control and Prevention (CDC)
- CDC Resources for First Responders
- Florida Department of Health
- Florida’s Response to Emerging Infectious Disease
- Florida League of Cities