Union’s Proposal on Court Appearances and Other Out-of-Home Work Obligations

September 2, 2020

The union’s Covid committee puts forward the following proposal regarding court appearances and other out-of-home work obligations, in response to LSNYC management’s proposal of age- and health-related exemptions.

For over 50 years, our organization and our union members have been dedicated to challenging systemic injustices that our clients face. To protect ourselves, our families, our clients, and our communities, we must resist the scheduling of in-person court appearances and fight the refusal of several forums to adopt safer systems during this pandemic. We must collectively respond to recalcitrance and stonewalling from OCA and other forums by pushing harder, not by backing down.

From infection to death rates, Covid-19 has had a disparate and devastating impact on communities of color, the very communities that we are entrusted to fight for and protect. Many of our union members come from these communities and return there every night. We are unequivocally against putting our clients’ lives and our communities’ lives in danger through a premature mandate to return to in-person court and other appearances.

With regard to management’s proposal, while we agree that staff in high-risk categories or with family members in high-risk categories should absolutely be exempted from any out-of-home work obligations, including court appearances, we are not willing to sacrifice any of our union members for a premature return to court. Staff have been effectively working remotely, continuing our practice of challenging systemic injustices and ensuring the well-being of communities across the City. We have been zealously fighting evictions and preserving housing; demanding access to high-quality education, health care, and economic security; ensuring safety and stability for survivors of domestic violence and immigrants; and fighting for the dignity and respect of all New Yorkers, including LGBTQ communities, New Yorkers with disabilities, and people of color. We have also been adapting to the changing circumstances that Covid-19 imposes on us. For example, in just 11 short weeks, led by union members we instituted a client fund that delivered over $165,000 in emergency cash grants to approximately 250 families across all five boroughs.

LSNYC management’s current proposal of age- and health-related exemptions will leave a remaining group of staff – those who are under 65, apparently healthy, and without household members who would be put at risk – who would not be eligible for an exemption and who could be ordered to go to court or the office under LSNYC management’s plan. LSNYC management’s proposal further ignores the reality that many staff have caregiving obligations for high-risk people who are not members of their immediate households, and the reality that members with school-aged or younger children may not be able to attend a court or other out-of-home work event due to remote schooling or lack of childcare. In addition, LSNYC management’s weaponized reading of attorneys’ professional ethics requirements ignores the reality that many non-attorney staff, including intake paralegals, social workers, process servers, and many others, are routinely expected to go to courts and other forums.

Covid has killed many people who were young and had no underlying health conditions, and has left many others stricken with life-long disabilities. It is not right to demand that young and apparently healthy staff who may not qualify for an exemption under management’s plan put their bodies and their lives on the line, and to demand that staff with caregiving obligations for loved ones who are not immediate household members be forced to put the health and lives of those loved ones at risk.

There is still no evidence that it is safe for staff to be in the courthouses or the offices — or, for that matter, to take public transportation to those locations. It is premature to negotiate over who management might deem to be exempt when all available evidence suggests that it is not safe for anyone.

We have requested documents that could allow us to ascertain the physical condition of the courthouses and office buildings and what measures are necessary to make them safe. To date, we have received a small set of initial responses, many of which lack essential information and none of which address the courthouses. Receiving full and transparent information is a threshold issue that must be addressed before we can meaningfully discuss what steps would be necessary for staff to safely engage in out-of-home work obligations.

At the current time, there are very few cases scheduled for in-court appearances. As staff, we will continue working to settle or adjourn those cases, to handle them virtually, to meet deliverables, and to serve our clients while working remotely.

If a case does arise that cannot be handled in that way, and if LSNYC as an organization decides not to withdraw from representation, a senior leader of our organization should go in person to handle the case. Senior leadership at LSNYC has represented that you are personally willing to go to court. If senior leadership believes that it is now safe enough to be in the courthouses, or that as an organization we cannot refuse in-person appearances, then we look to you to send a powerful message, to stand up, and to be the ones to go in person.

Meanwhile, collectively, we can use this time to continue pushing OCA, the owners and managers of LSNYC office spaces, and other forums where our members appear to jointly assess the physical condition of the courthouses and work spaces, and to determine when and how it will be made safe for a larger group of employees to return in person.

The above union proposal is a response to LSNYC Management’s “Health and Age Related Exemption proposal” of August 10, 2020, appended below.

LSNYC Management’s “Health and Age Related Exemption proposal” of August 10, 2020

We will continue to support our advocates’ efforts to protect their client’s health and their own by pushing back against in-person proceedings (including trials or other matters) and by working to ensure that our client interests are protected in virtual proceedings.

While the vast majority of our staff will continue to work remotely for the foreseeable future, The Code of Professional Responsibility requires lawyers to make in-person and virtual appearances and engage in other out-of-home activities to represent their clients. Since these are fundamental professional and ethical requirements we will not bargain over them. We agree to bargain over health-related accommodations (proposed below) and supports for staff who have to make in-person appearances and engage in other out-of-home activities in response to your demand. It is urgent that we negotiate these matters because of the demands of the courts and other forums at which our clients’ cases are heard.

Health and Age Related Exemptions from Certain Work Activities During the COVID-19 Pandemic

Staff may ask HR to be excused from making in-person court appearances or other out-of-home work obligations based on age (65 and over), a medical condition, or the medical condition of a family member with whom they live, based on current CDC guidelines (currently posted at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html). After September 14, 2020 staff may request to continue their exemptions upon submission of medical documentation as described below.

Staff who have a CDC enumerated medical condition that places them at increased risk of severe illness from COVID-19, who are 65 and over, or who live with a family member who is 65 and over or who has a CDC enumerated medical condition deemed to place them at increased risk of severe illness from COVID-19, will be granted an exemption from returning to work in the office, or from making court appearances or other out-of-home obligations, upon submission of medical documentation of the CDC high risk condition to HR.

Alternatively, staff who have one or more other medical conditions that might place them at increased risk for severe illness from COVID-19, pursuant to current CDC guidelines, who are 65, or who live with a family member who is 65 or who has a medical condition that might place them at such increased risk, will be granted an exemption upon submission of a medical letter stating that in-person court appearances or other out-of-home work obligations might put the staff member or family member at increased risk of severe illness from COVID-19 based on the staff member’s or family member’s individual facts and circumstances.

All medical documentation that is submitted to the HR department is kept confidential and will not be shared with other staff or managers. You are not required to share information about your medical condition with your manager.

Exemptions will be subject to periodic review based on the nature of the medical condition and on the public health developments relating to COVID-19 infection rates, treatment protocols, and the success of efforts to reduce the risk of infection.

Please note that staff are expected to continue to work full-time from home during the duration of your exemption from in-person appearances.