Labor and Employment | School and Higher Education Law | Municipal Labor Counsel | Employment Litigation

COVID-19 – Workplace Safety Grievances

November 3, 2020

Absent an Order from the Governor or Department of Health Services closing schools, school districts may provide in-person instruction so long as they deem it safe to do so. The issue for those school districts electing to provide in-person instruction is ensuring employee safety and health (as well as student safety and health).

In light of the recent surge in the number of COVID-19 cases, more and more employees are raising workplace safety and health concerns. There is a lot of anxiety among employees as to workplace safety and health right now – Anxiety about personal protective equipment (PPE) (wondering if they have the right kind), class size (whether classes are too large to allow for proper social distancing) and sanitation protocols (are school districts routinely taking sufficient steps to clean and disinfect the workplace).

There is a right under Wisconsin law to not have to work if an employee believes it is unsafe to do so – Employers are obligated to provide a safe workplace. (Wis. Stat. § 101.055 makes available to employees of state and local governments (including employees of public schools) the rights and protections relating to occupational safety and health equivalent to those granted to employees in the private sector under the Occupational Safety and Health Act of 1970). That being said, employees do not have a private right to sue an employer for violating these safety and health regulations. All employees can do is report their claim to the Wisconsin Department of Safety and Professional Services (Division of Industry Services) and then have it investigated.

However, school district employees do have other rights. A number of school district employees are pursuing workplace safety grievances on an increasing basis. Pursuant to 2011 Wisconsin Act 10, local governmental units (i.e., school districts) were required to establish a grievance system not later than October 1, 2011. Wis. Stat. § 66.0509(1m)(a). Under this statute, the grievance procedure must contain all of the following:

(1) A grievance procedure that addresses employee terminations;
(2) Employee discipline; and
(3) Workplace safety.

Wis. Stat. § 66.0509(1m)(c). (Emphasis added).

The grievance procedure must contain all of the following elements:

(1) A written document specifying the process that a grievant and an employer must follow;
(2) A hearing before an impartial hearing officer; and
(3) An appeal process in which the highest level of appeal is the governing body of the local governmental unit (i.e., the School Board).

Wis. Stat. § 66.0509(1m)(d).

Generally, school boards, within the grievance procedures they have adopted, define the term “grievance” as a dispute concerning an employee’s discipline or termination of employment, or a dispute concerning workplace conditions that affect workplace safety. School boards further define the term “workplace safety” as those conditions related to the physical health and safety of employees enforceable under Federal or State law, or District rules related to: safety of the physical work environment, the safe operation of workplace equipment and tools, provision of protective equipment, training and warning requirements, workplace violence and accident risks.

Anxious employees are utilizing their right to pursue a grievance in hopes of addressing their workplace safety and health concerns. Initially, school districts that receive a grievance alleging a workplace safety issue should be prepared to process the grievance. Immediate supervisors and/or the district administrator should be prepared to meet with the employee(s) raising safety and health concerns to discuss the concerns and outline for the employee(s) the steps being taken by the District to ensure workplace safety and health.

In the event those workplace safety and health concerns are not resolved by the immediate supervisor and/or District Administrator, the matter may be referred to an Impartial Hearing Officer (someone the District appoints who has specific knowledge as to resolving workplace grievances and, in this particular scenario, someone who has specific knowledge about workplace safety matters). Before the Impartial Hearing Officer, the District’s Administration should be prepared to identify the federal, state and local rules and regulations the District is adhering to, the District’s policies and procedures as well as the individual(s) charged with implementing and enforcing them. Additionally, the District’s Administration should be prepared to address the following:

  1. COVID-19 Response Plan – The written protocols the District is using to guide its response and navigate COVID-19 employee issues.
  2. PPE and/or Face Coverings – The written protocols for use of PPE and/or face coverings applicable to employees, students and visitors, including enforcement of those protocols. Moreover, if the school district is distributing PPE and/or face coverings, the equipment and/or face coverings must fit and employees, students and visitors should be trained in its use.
  3. Time and facilities to adequately wash hands – Employees, students and visitors should be encouraged to frequently wash their hands and be afforded the opportunity to do so. Adequate facilities for doing so should also be made available.
  4. Allow 6 feet or more of distance between individuals – Class size should be monitored and should not preclude employees, students and visitors from maintaining appropriate social distance.
  5. Sufficient cleaning and disinfection – Cleaning and disinfection should be carried out during the school day and between school days. The protocols and frequency must be documented.
  6. Wellness rules that keep employees, students and visitors home if they are sick or send them home if they get sick – Employees, students and visitors must stay home and must be sent home if they are experiencing any of the symptoms generally associated with COVID-19.
  7. The ability to speak up about safety – Employees, students and visitors should be able to raise concerns and suggest alternatives as to workplace safety (through safety groups, for example) without fear of retaliation. School districts must refrain from taking any adverse action against employees who raise workplace safety concerns.

In order to prevail before an Impartial Hearing Officer, school districts must be able to document implementation of the foregoing protocols by adopting rules and regulations as well as their efforts to communicate with employees, students and visitors as to the foregoing through electronic-mail, flyers, memorandums, etc.

Ultimately, the matter may go before the school board for a final decision.

For questions regarding this article, please contact the author, Attorney Tony J. Renning (email: trenning@strangpatteson.com; telephone: 833.654.1177), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.