By: Allison N. Genard, Esq.
Published on: Fri 5th Apr, 2024 By: Campbell Durrant, P.C.
During the pandemic, municipalities were trying to keep their employees safe while dealing with the challenges of staffing and an ever growing to do list. Many municipalities struggled with disciplining employees when health recommendations were changing daily and becoming increasingly politicized. There was very real concern about whether arbitrators and the courts would uphold discipline related to masking and other health-related rules and policies. The courts previously upheld municipalities’ right to require vaccines and testing measures, but the courts have not issued many rulings on discipline for failure to comply with health requirements. Recently, the Commonwealth Court upheld the termination of a police officer who refused to participate in funeral honors for a deceased coworker because the Chief was enforcing the Township’s mask mandate for officers in uniform at the viewing.
In November 30, 2021, Collier Township Police Department lost a longtime Township officer when he died off-duty. At the request of the officer’s family, the Chief of Police arranged for the Township’s officers to provide ceremonial honors at the officer’s funeral. The Chief required all members of the Township’s Police Department enter the viewing service during the afternoon of December 5, 2021 in a formalized procession in dress uniforms, and then perform Casket Duty for the duration of the viewing period. Casket Duty involved two officers standing at the foot and the head of the officer’s casket, with officers rotating at 15-minute intervals. The Department had a COVID-19 policy in effect that required officers who were not fully vaccinated to wear a mask at all times while in uniform or while working as an officer.
On December 2, 2021, the Chief sent an email to the entire Department explaining the plan for the viewing and instructing that all officers are expected to attend, to let him know as soon as possible if someone is unable to attend, and to direct questions to a specific sergeant. That sergeant was speaking with several officers on December 3, 2021 and explained that the Chief had purchased black surgical masks for unvaccinated officers to wear for the viewing and funeral. The officer at issue in this case reacted by exclaiming, “Are you f[****]ing kidding me?” and then, “I’m not doing it. This is ridiculous.” The officer then stated the Chief had no recourse if he failed to wear his mask. After the sergeant advised the Chief of this conversation, the Chief sent a reminder email about wearing masks. The officer then did not attend the afternoon viewing as instructed, but instead went to the evening viewing in civilian clothes without a mask.
The Chief considered the officer’s actions to be insubordinate and directed the sergeant to investigate the officer’s failure to participate in the viewing services as directed. The investigation was conducted and a Disciplinary Action Report was issued on December 16, 2021 recommending the officer be terminated. The Township conducted a Loudermill hearing and then voted to terminate his employment. The officer grieved the termination to arbitration.
The Arbitrator issued an Award denying the officer’s grievance. The Arbitrator found that the officer was terminated for “his failure to appear in his formal dress uniform during his attendance at the viewing service” and “for his failure to wear a mask during his attendance at the viewing service and funeral.” The Union appealed the Arbitration Award to the Allegheny County Court of Common Pleas, which dismissed the Union’s petition, finding that the Arbitrator conducted a full hearing on whether the officer was terminated for failing to appear in formal dress uniform during his attendance at the viewing service and failing to wear a mask during the attendance at the view service. The court also found that the officer was terminated for those actions and not for refusing to participate in the Loudermill hearing. He also found that the officer’s due process and other constitutional rights were not violated, and he appropriately applied the extreme deference standard. The Commonwealth Court upheld the trial court’s ruling and the Arbitration Award.
Municipal employers can look to this case as reassurance of taking appropriate disciplinary action when an employee refuses to follow orders due to an employee’s objection over masking or other health-related requirements. While most municipalities have done away with mask mandates, objections to vaccine mandates and other health-related policies are still prevalent. In this case, the Township took a measured and prepared approach to addressing an officer’s insubordination and ensured that the officers’ constitutional and due process rights were protected to avoid procedural issues. The court rulings in this case are instructive for other municipalities looking to discipline employees for refusing to comply with orders even if the employee objects to a masking, vaccine, or other health-related policy.
Takeaways
• The Commonwealth Court upheld the termination of an officer for insubordination when he refused to attend funeral services for a coworker in dress uniform because he was going to be required to wear a mask.
• The Commonwealth Court found that the Township properly protected the officer’s due process rights by conducting a Loudermill hearing and notifying him of the charges of misconduct.
• The Arbitrator appropriately found that the officer was disciplined for failing to wear his formal dress uniform and wear a mask to a coworker’s funeral in defiance of the Chief’s orders.
Bottom Line
The Commonwealth Court upheld the termination of a police officer who refused to wear his dress uniform and a mask to a coworker’s funeral. The Chief of Police had ordered the officers to appear for the viewing in their dress uniforms and wearing a mask, if unvaccinated, to perform processional and casket duties. The officer at issue in this case did not attend the viewing service in his dress uniform or wear a mask. Rather, he attended a later viewing service in civilian clothes and did not wear a mask. The Chief initiated an investigation and the officer was ultimately terminated. The Commonwealth Court upheld the termination for insubordination.
