COVID Update: police asked to enforce mandatory mask rules – new job duties must be bargained first

While many communities fluidly react to the current health emergency, there are mixed messages to first responders about their roles in enforcing fluctuating public health policies. In addition to the anxiety of conducting usual law enforcement activities within the circumstances of a pandemic, police officers are now flooded with such things as calls from anonymous tipsters about a perceived lack of social distancing, creating new job duties, added friction with citizens, and an increased workload for public safety workers already shouldering a difficult burden. The latest addition to this workload, in some areas, is the new duty to enforce mandatory face covering rules. Unfortunately, the mixed messages continue.

While some states and communities are implementing these rules, details about enforcement are often unclear. Some governments say they are looking for voluntary compliance, while others say all options are on the table, including the right to arrest. Some say they will issue fines, while others say they will issue masks. Some communities have excellent public education campaigns ahead of enforcement, and others simply post new board of health orders on a website, ultimately leaving it to the police to figure out. Concerns are all over the map. Some Governors have said such locally issued laws are unenforceable. Advocacy groups are suggesting that police action will unfairly impact minority populations in violation of civil rights, while others claim that such enforcement is a depravation of other constitutional rights.

As usual, police officers asked to blindly enforce such rules, without proper guidance or liability protection from policy makers, are at risk. Police on the front line depend upon a cooperative relationship with the public, which relationship keeps both the officer and the public safe. A lack of clarity on this issue may put both the citizens and law enforcement at a higher risk for confrontation – something neither wants. For example, take a look at what happened in Philadelphia when police had to react to a non-compliant individual without a mask: CLICK HERE FOR VIDEO. It is imperative that policy makers make sure not to put their first responders in a no-win situation.

Bargaining Recommendation.

Law enforcement unions are reminded that, as a general rule, changes to job duties are mandatory subjects of bargaining. Prior to any such new duties, communities should sit down with unions, discuss and bargain over decisions to make such changes, as well as the impact those decisions will have on the job duties of its police officers, including:

• what clear directives will be given to police regarding enforcement? Will people be arrested, fined, will masks be given out, by whom, is there officer discretion, in what scenarios, etc.?

• will the local government first educate the public about expected law enforcement reaction? In what way? Are officer expected to perform such education?

• what is the appropriate police action in the many potential scenarios? Are officers expected to use force where there is resistance? What about passive resistance situations? What about instances where suspects are many? What amount of police resources are expected to be dedicated in a given situation?

• there have ben reports of attacks on officers – people spitting on police, etc. What actions are being taken and are necessary to protect the health and safety of the officers implementing such orders? If multiple officer interact with a non-complaint detainee who claims to be infected, will all officers be required to quarentine? What is the leave policy in that case?

• will the community defend and indemnify officers from lawsuits – including claims of constitutional and civil rights violations?

• as officers are asked to perform new duties which could logically result in them contracting infection (and passing it on to thier own families and others), will officers be compensated additional hazardous duty pay?

• has the city or town explored other ways to enforce such orders, including by health officials rather than police? Boards of health often have the ability to delegate enforcement capabilities to others, such as local inspectors – has the local government explored delegating such enforcement to non-police? Should Board of Health hire individuals to enforce?

Unions faced with new rules such as described above should file a demand to bargain with their employer, asking that all such decisions be put on hold until the above bargaining can take place. Demand infornmation and answers to the above questions, and any others that are germane. Where the employer refuses, a labor law violation complaint may be appropriate (remember: bargaining is intended where a change is taking place, so if a collective bargaining agreement or existing rule already addresses the situation, then a change is not necessarily occuring. CBAs and current policies should always be consulted).

Source: Legal
COVID Update: police asked to enforce mandatory mask rules – new job duties must be bargained first