The SARS-CoV-2 (COVID-19) pandemic has exposed many new ethical questions involving the courts. The national “shelter-in-place” directive left businesses and government agencies scrambling. Courts worked to save employee jobs. Many courts were fortunate to receive emergency funding and retain employees for weeks while they remained at home. Other courts were able to establish “telework” protocols allowing some (perhaps, not all) employees to work from home.
Less fortunate courts were forced to start furloughing employees for several days a month. Still others laid off employees. Courts worked to be fair to their own employees. On a national level, the result was a patchwork of different employment situations. Whether you were able to stay home, work from home, had to go into work, or got laid off depended as much on which jurisdiction you served as on what work you did.
This occurred while millions of private-sector employees (many of them in the hospitality industry) were laid off with few options other than applying for unemployment. This led to a perception of disparity between some government employees being paid (by taxpayers) to sit at home, while waiters and waitresses were laid off.1 Canon 1.1 of the NACM Model Code calls for court professionals to be honest and open; Canon 1.3 calls for court professionals to be fair. What is fair in a situation like this?
Presiding Judge Alice Fairer and court administrator Max Krutcher are managing the circuit court during a pandemic. The governor has ordered businesses and government offices closed for two weeks. The chief justice has authorized paid pandemic emergency leave for court employees who do not have enough personal and sick leave to cover the two weeks they will be out. The state administrative office needs a finite number of paid emergency leave days each court will need so it can ask the governor for an emergency budget allocation. The state office told Judge Fairer that her court needs to provide that number by the day after tomorrow or else her court will be left out of the emergency allocation altogether.
To complicate matters, the fiscally conservative state auditor has vowed to audit any court if it appears to be abusing its emergency leave allocation. Max and Judge Fairer do not want to give the appearance that the court is giving a paid two-week windfall holiday to all employees, and they are anxious to avoid an audit.
Judge Fairer tells Max:
- Employees need to use up their personal and sick leave first. Only then will they be allocated additional paid emergency leave to make up the balance of the two weeks.
- Employees who are sick-leave abusers will not be allocated any emergency leave. They will have to take leave without pay.
Max identifies 30 employees who do not have enough personal or sick leave to cover the full two weeks. Ten are tagged “sick-leave abusers,” defined as any employee who has been counseled for suspicious sick leave use (e.g., routinely taking Mondays or Fridays off).
Since time is of the essence, Max decides not to disseminate a general email to all employees explaining the criteria for receiving emergency leave. Instead, he opts for individual emails to each employee stating how many emergency-leave days that employee will receive. Sick-leave abusers receive no emergency-leave days.
These blanket conditions inevitably affect employees differently. For example, Mildred and her supervisor have been engaged in a long-running dispute over her sick-leave use. Mildred gets debilitating migraine headaches preventing her from coming to work, usually on Mondays. Her supervisor cannot distinguish between Mildred and Reva, who also takes many Mondays off. Reva’s problem, however, is that she is hungover on Mondays after partying all weekend. The supervisor demands a doctor’s note from both for each sick day used. Mildred cannot afford to see the doctor each time a migraine comes on, and Reva will not because she does not think it is any of the court’s business how or when she uses her sick days. Finally, Derrick has more than two weeks of sick leave available, but he simply believes it is unfair for the court to require employees to use any sick leave because of the pandemic. He feels the court should just allocate two weeks of leave to all employees regardless of their situation.
Adding to the tumult, Max has been able to acquire technology so managers and supervisors can “telework” from home. This means they will be allocated no paid emergency leave, but they will also not have to use up their personal and sick leave. Only line staff will be forced to deplete their sick leave.
I have asked Kelly Hutton, assistant court administrator in Grand Forks, North Dakota; Jeff Chapple, court administrator for the Municipal Court in O’Fallon, Missouri; and Stacy Worby, state jury coordinator for the Alaska Court System in Anchorage, Alaska to give their viewpoints on the scenario.
Does the pressure brought on by the pandemic and the state office’s time-sensitive demand override ethical concerns in having to make a decision?
Jeff Chapple saw these as unique times in uncharted waters. Time-sensitive demands do sometimes drive decisions. “Courts were forced to make decisions that might have not been the same practices as in the past. However, decisions can be adapted and changed as time continues or additional evidence appears. The health and safety of the staff and citizens the court is the top priority in emergency situations.”
To Kelly Hutton, the pressure and time-sensitive nature of the situation should NOT override ethical concerns in making these decisions. “Managers should consider the fairness and be honest and open with their employees as mentioned in Canon 1.1 and 1.3. These decisions should be based on current policies and be clearly explained to all involved.”
In Stacy Worby’s view, the situation did not suffer from having to make a quick decision. Rather, it assumed that the court had to look at every employee’s situation separately. “If they felt that it was fairer to delve into each employee’s record to sort out who deserved emergency leave (which I fundamentally disagree with), then the time-sensitive demand would override ethical concerns as to not leave any employee without pay.”
Should Judge Fairer and Max distinguish between the situations Mildred, Derek, and Reva find themselves when allocating the paid emergency leave?
For this situation and the minimal facts given, the decision was as fair as it could be in Kelly’s view. “It is of course not fair to Mildred who suffers from debilitating migraines. However, I am sure that she is already being treated by a medical professional for her migraines and could obtain a note indicating that she suffers from reoccurring migraines, and that may suffice. The best solution would be to allow all to telework, even if you have to get creative with what they are able to complete at home.”
Deciding who “deserves” paid emergency leave is a slippery slope in Stacy’s mind. “Co-workers and even supervisors may not and cannot know everyone’s life circumstances. It may not appear fair to Derrick and the other employees who have diligently saved their leave that they must use the personal leave and others have the benefit of emergency leave, but this is a deeper issue that should be addressed separately from this emergency situation.”
In Jeff’s mind, sick leave should be offered universally to all employees regardless of behaviors. “If there is a decision to offer additional time, it should be offered to all. If they are requiring staff to use their sick time, then the use of that time should be consistent. If there are employees without time available, then they will get unpaid time.”
Is it fair that managers can telework, while line staff must use their sick leave?
Stacy’s position is that if the work the managers were doing was necessary for the continuity of operations and line staff were unable to do their work from home, either because of the type of job is not compatible with telework or court technology cannot handle it, it is fair to separate the workforce. “It is certainly not ideal, but not much about this situation as a whole is.”
Kelly thought that allowing only managers to telework was not fair. She believed that there is still work that line staff would be able to accomplish at home. “It may look different than what they are doing now, but there is always work to do.”
Jeff pointed out that not all positions are the same. An example might be essential manager positions versus nonessential positions. “Trying to be as consistent throughout the court is key. Adapting positions and duties with rotating staff can assist in addressing those concerns.”
What would be the fair thing to do in this situation?
Jeff suggested that the court should offer the additional time to all positions. “If there is not a way to work remotely and courts are closed, then use up the available time until it is zeroed out, and unpaid time would then be necessary until the courts reopen.” He recalled that this was very similar to FMLA or short-term disability.
Stacy saw the core of the problem was requiring employees to use their personal and sick leave before granting emergency leave. “Allowing all employees who were not able to telework to use the emergency leave (or furloughing all the employees and allowing them to collect unemployment) rather than dipping into their personal leave may have been a better option.”
Stacy suggested that the fairest thing would have been to apply the policy to all employees in the same way. “Have employees who have personal leave use that up first, and then give the emergency leave to those who do not have any personal leave to draw on.” This decision would have allowed the court to remain unambiguously honest and open about the decision-making process (Canon 1.1). “The attendance issues an individual employee may have should be kept separate and dealt with accordingly. At the end of the day, it’s not as if employees perceived as abusing leave could have foreseen this circumstance and use up their leave on purpose to game the system.” She saw that given the emergency, having managers telework and line staff stay at home is reasonable and fair for continuity of operations.
Kelly advised that all reasonable efforts should be made to allow all staff to telework. “The courts must continue operations and therefore even line staff who answer phones and process paperwork are still needed. If this isn’t possible right away, then perhaps they could assist other departments with work.”
I appreciate Jeff Chapple, Kelly Hutton, and Stacy Worby for their thoughts regarding this difficult decision. Issues like this are springing up around the country due to COVID-19. Robust discussions like this will make reaching a reasoned policy easier for court professionals. This public health crisis is likely to raise even more ethical decisions in the months to come.
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ABOUT THE AUTHOR
Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut.
- Rebecca Gale, “Emergency Paid Leave Helps Some Families, Leaves Others Adrift,” New York Times, May 18, 2020; Lynnsey Gardner, “Top City Employees May Earn Thousands in Extra Pay for Working During Pandemic,” Channel Four News, Jacksonville, Florida, May 21, 2020.