LAW OFFICES DILLON FINDLEY Anchorage, Alaska 99501 TEL. (907) 277?5400 FAX (907) 277?9896 A PROFESSIONAL CORPORATION 1049 W. 5th Avenue, Suite 100 THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE ALASKA STATE EMPLOYEES LOCAL 52, .2 nameceivedmWm, - t- . VS 3 ,wamemacms STATE OF ALASKA, Defendant. Case No. 3AN-20- CI COMPLAINT Plaintiff Alaska State Employees Association, Local 52, asserts the following claims against defendant State of Alaska (?State? or ?Defendant?), alleging as follows:limm, p, i is INTRODUCTION 1. This action seeks immediate judicial relief related to the Defendant?s failure to protect ASEA members from the health and safety risks posed by the novel Coronavirus an infectious disease pandemic. 2. The Defendant has failed to take adequate measures, including by failing to abide by its own policies and health mandates, to ensure that ASEA members are protected while at work. This includes the following: COMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. 3AN-20- CI Page 1 of 18 33 9?2 ram 2 ?ogs 3" ?thi?u. 00833212, z?wo we ,4 53.0"? .ctb . @325 .4942 1?4?March 19, 2020, the State circulated the COVID-19 Leave Policy, which addressed the telework and workplace configuration guidance.21 According to that policy, the State intended to ?continue to explore and promote all possible options to eXPandrtelecommuting? for State employees}? The is ?available to employees only in management~approved positions,? and that ?management ?retains the right to approve or deny requests based on established ?23 criteria. That includes the position?s suitability for telecommuting, the employee?s suitability for telecommuting, and the mutual benefits to the agency and the employees. The policy identified the individuals ineligible for telecommuting: those holding positions essential to public safety, safety site visits, child welfare, and ?some people within 24/7 facilities.?24 The State further promised to provide PPE and training to State employees to allow employees to ?protect themselves and the public while performing necessaryiiobfunctions?? 13. On March 21, 2020, Municipality of Anchorage Mayor Ethan Berkowitz issued an emergency order, requiring certain citizens and others to ?bunker down,? in 21 Exhibit K, Email from Kelly Tshibaka, enclosing State of Alaska Leave Policy, March 19, 2020Id. COMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. 3AN-20- CI Page 7 of 18 FAX (907) 277-9896 LAW OFFICES DILLON FINDLEY Anchorage, Alaska 99501 1049 W. 5th Avenue, Suite 100 TEL. (907) 277?5400 - A PROFESSIONAL CORPORATION response to On the following day,'the State, through Department of Health and Social Services Commissioner Adam Crum, sent an email that identified an exception in Mayor Berkowitz?s hunker down order, stating that ?State agencies must services to the public in this Commissigngr, Crum stated that ?[a]gencies have been Working to promote the use of telework where appropriate. State offices have also been finding appropriate ways of maintaining social distancing in the workplace through configuration and schedule.?28 14. On March 23, 2020, the State provided additional guidelines for the public, including quarantine rules for interstate and international travel,29 and additional. mandates regarding businesses and gatherings ?where individuals are within six feet of each other,? and precluding ?no gatherings of more than 10 people? unless those people can maintain a distance of six feet apart from each other.30 The State also issued a list it calls?Alaska Critical Workforce Irrifrastructure,??731 iAccordingto theState,uernployers have a ?special responsibility? to protect individuals who provide government functions, 26 Exhibit L, Municipality of Anchorage Proclamation of Emergency ?Hunker Down? Order March 20, 2020. 27 Exhibit M, Email from Adam Crum to all State employees, March 21, 2020. 28 Id. 29 Exhibit N, Health Mandate 10.1, March 23, 2020. 30 Exhibit D. 31 Exhibit at Attachment A. COMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. CI Page 8 of 18 8 {9?2 3: 95190 mgae? mZgJ?gv Eimg??e 0082260 3 A miss- gog26- including ?all services needed to ensure the continuing operation of government agencies.?32 ASEA AND ITS MEMBERS 771775,. 7 WQver the course of the last two weeks, and in response to orders, policies and directives, ASEA members have sought permission to work from home or to telework based on personal safety concerns, personal risk factors, and or because they are non-essential employees who can complete their jobs at home without disrupting essential State services. 16. The State, through its employees and supervisors, has not agreed to allow certain ASEA members? requests to telework, and has generally failed to abide by the policies outlined above, including as follows: a. ASEA employees work in pods that are not six feet apart and that do not 71 include barriers to prevent employee contact?3 To protecttheir own safety, ASEA members have purchased and installed make-shift plastic shields to provide separation.34 members have been informed by some State supervisors and others that the. work spaces provide adequate social distancing, but ASEA employees share break rooms, elevators, stairwells, 32 Id. 33 Metcalfe'Aff. at in 34 Exhibit 0, pictures. COMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. CI Page 9 of 18 0\ mg at? n2?r?gv od?? raver .4 . 008<24 2 . W90 1?192 A ages mggaag rm ?leE?m 0:823:23 a 25%8 ?lz HQ i ??g-aw gases :08;ng szg?ei #4035: n?IgH entitled to refuse to work on an unsafe job, requires that the State provide ASEA members with safety equipment, and further requires that the State abide by the Division of Labor Standards and Safety regulations.53 The Division of Labor Standards and Safety directs all State, employees to, theVState?s COVID-V 19, resources, including the communications and policies referenced above.54 19. AS 18.60.075 requires an employer, including the State, to ?do everything ?55 necessary to protect the life, health and safety of employees and specifically includes complying with occupational safety,56 adopting and prescribing ?suitable protective equipment, safety devices, and safeguards as. are prescribed for the work and ?57 adopting procedures that prevent an employee from being exposed to workplace, hazards}.8 and furnishing an employee a place of employment free from recognized hazards.59 53 . Exhibit Q, Excerpt from the CBA at Article 29. . 54 Clicking the first link under Coronavirus Information Links at the. Alaska Department of Labor and Workforce Development webpage directs a person to the webpage for State employees 55 AS 56 Id. at 57?memCOMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. CI Page 14 of 18 FAX (907) 277?9896 LAW OFFICES DILLON FINDLEY Anchorage, Alaska 99501 A PROFESSIONAL CORPORATION 1049 W. 5th Avenue, Suite 100 TEL. (907) 277-5400 - 20. 'By and through the facts described above, and in the attached affidavits, the State is failing to provide a safe environment for ASEA members and other employees as required by the CBA and Alaska law. 7 in 21. The ASEA filed a grievance under the CBA due to the State?s failure to satisfy Article 29 of the CBA. 22. An arbitrator has not yet been selected to hear the grievance. Based on past experience, ASEA predicts it will take months to a year or more to obtain an opinion from the arbitrator resolving the grievance. IRREPARABLE HARM CAUSED BY THE, DEFENDANT 23. The Defendant is already causing the ASEA to suffer irreparable harm, and ASEA will continue to suffer additional irreparable harm if the State is not enjoined from violating the CBA and'Alaska law. 24. By failing to provide a safe work environment, and by failing to follow the procedures the Defendant adopted, announced and promised State employees, the Defendant is seriously harming ASEA members. The harm is varied, and includes the failure to allow telecommuting agreements, the failure to maximize social distancing, the failure to adequately train employees, the failure to treat ASEA members with dignity and respect, the failure to modify work spaces and schedules, the failure to adequately protect employees from exposed hazards, and failure to provide adequate PPE. These COMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. CI Page 15 of 18 FAX (907) 277-9896 LAW OFFICES DILLON FINDLEY Anchorage, Alaska 99501 . A PROFESSIONAL CORPORATION 1049 W. 5th Avenue, Suite 100 TEL. (907) 277-5400 - harms are occurring, and expose ASEA members to serious health risks. These harms will increase so long as the Defendant is not enjoined from its continued practice. COUNT I INJ UN CTION IN AID OF ARBITRATION . AND IN ACCORD WITHALASKA LAW The ASEA incorporates paragraphs l-25 as if fully set forth herein, and alleges as follows: 25. Under established law, courts may issue a temporary restraining order or preliminary injunction to preserve the status quo and to protect the arbitration process pending the arbitration of a labor dispute under a collective bargaining agreement requiring arbitration of grievances. Such a temporary injunction to preserve the status quo pending arbitration is available under the PERA.60 I 26. The ASEA is entitled to injunctive relief to preserve the status quo because the CBA with the State of Alaska requires the State to arbitrate grievances arising out of disputes related to the agreement, including whether the State is complying with Article 29 of the CBA. 60 is the Public Employment Relations Act (AS 23.40.070.230); Fairbanks Fire Fighters Ass?n, Local 1342 v. City of Fairbanks, 934 P.2d 759, 760?61 (Alaska 1997). COMPLAINT Alaska State Employees Assoc, Local 52. v. State of Alaska Case No. CI Page 16 of 18 5 9?2 ago a MQOO came Egg/??x oHod?42 31 33% 5 ng?sav 81?15332? gens 3 2,5090 195?? This mandatedoesnot include-urgent, and emergent health care needs, nor health care facilities; however, health care facilities must?do risk assessment screening prior to entering the facility. Exhibit a Page 1 of 1 "For the. latest information on COVID-19, visit eaten vi? State of Alaska COVID-19 Mandate 009 CORONAVIRUS GUIDELINES FOR AMERICA 15 DAYS TO SLOW THE SPREAD Listen to and follow the directions of your STATE AND LOCAL AUTHORITIES. IF YOU FEEL SICK, stay home. Do not go to work. Contact your medical provider. IF YOUR CHILDREN ARE SICK, keep them at home. Do not send them to school. Contact your medical provider. IF SOMEONE IN YOUR HOUSEHOLD HAS TESTED POSITIVE for the coronavirus, keep the entire household at home. Do not go to work. Do not go to school. Contact your medical provider. IF YOU ARE AN OLDER PERSON, stay home and away from other people. IF YOU ARE A PERSON WITH A SERIOUS UNDERLYING HEALTH CONDITION that can put you at Increased risk (for example, a condition that impairs your lung or heart function or weakens your immune system), stay home and away from other people. Exhibit Page 1 of 2 For more information, please visit CORONAVIRUS.GOV THE CORONAVIRUS GUIDELINES FOR AMERICA DO YOUR PART TO SLOW THE SPREAD OF THE CORONAVI RUS Even if you are young, or otherwise healthy, you are at risk and your activities can increase the risk for others. It is critical that you do your part to slow the spread of the coronavirus. Work or engage in schooling FROM HOME whenever possible. IF YOU WORK IN A CRITICAL INFRASTRUCTURE INDUSTRY, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule. You and your employers should follow CDC guidance to protect your health at work. Avoid eating or drinking at bars, restaurants, and food courts USE DRIVE-THRU, PICKUP, OR DELIVERY OPTIONS. AVOID SOCIAL GATHERINGS in groups of more than 10 people. AVOID DISCRETIONARY TRAVEL, shopping trips, and social visits. DO NOT VISIT nursing homes or retirement or long-term care facilities unless to provide critical assistance. PRACTICE GOOD HYGIENE: . Wash your hands, especially after touching any frequently used item or surface. . Avoid touching your face. - Sneeze or cough into a tissue, or the inside of your elbow. Disinfect frequently used items and surfaces as much as possible. CORONAVIRUS.GOV School operations can accelerate the spread ofthe coronavirus. Governors of states with evidence of community transmission should close schools in affected and surrounding areas. Governors should close schools in communities that are near areas of community transmission, even ifthose areas are in neighboring states. In addition, state and local officials should close schools where coronavirus has been identified in the population associated with the school. States and localities that close schools need to address childcare needs of critical responders, as well as the nutritional needs of children. Older people are particularly at risk from the coronavirus. All states should follow Federal guidance and halt social visits to nursing homes and retirement and long-term care facilities. In states with evidence of community transmission, bars, restaurants, food courts, gyms, and other indoor and outdoor venues where groups of people congregate should be closed. mm) . 3? WM Etep aent sf ?ealt?r and; Seutai? Seradees r. OF THE Aneheruge 360?: ?tcc: vote 953:: sum 99333-3923 Main: 987.269.78QQ Fox; 909?.2696068 A in Vr- rs: :L-z 35? ?tment; PO Boy 57 Moist Slot Suite 4% -?oneczu, A?oska 9987; 106? Mam: 907.465.3039 Fax: February 5, 2020 Dear State of Alaska employees, do to keep our state government running and to serve Alaskans. the case of an emergency. First and foremost, thank you for the important work; This is especially important during times :QanoV) outbreak that originated in US. Centers for Disease Control and ?inains low at this time. We understand that some of you a China and is now spreading to Prevention continues to under tuation and coordinating with our iaskans remain safe and protected. There are currently NO cases of federal, Tribal, and local partners. tionally and nationally, and we ible to prevent the spread of this their duties without increasing In the weeks and mo could see cases here i illness Alaska while? 13 their pers nal risk for exposure- As state employees, the best things Follow this situatio the media. For more. ptly inform the public through oronavirus.alaska.g0v. Practice good hygiene lit" hfections, including the Wash hands fr? q?u?e' Avoid touching yo Avoid close contact Clean surfaces with'an EP cleaning. If you are sick, cover your cough school according to school gu Take small steps to stay heal gar well, stay-hydrated, keep current on all vaccinations, get plenty of rest and physica activity and enjoy rim 3, [ends and loved ones. This is good advice anytime! Exhibit Page 1 of 2 Keep in mind that risk to most Alaskans remains low. People who have traveled to China in the past 14 days or have had direct exposure to someone with novel coronavirus are those most at risk. If you are at risk and have a fever or respiratory please call the DHSS Section of Epidemiology at (907) 269?8000 or after hours at (800) 478?0084 before visiting a health care provider. If you have any questions, please call (907) 269-8000 during business hours. For those with recent travel to China, please refer to this CDC document to understand its guidance: I This guidance became effective Feb. 3 and does not apply retrospectively to people who entered the United States prior to that date. The Centers for Disease Control and Prevention does not recommend that healthy people wear masks in public settings. If you have an underlying illness or a special health concern, consult your primary care provider for a more individualized recommendation. Please be respectful and treat others with courtesy. We will also be ?ghting fear, stigma, and misinformation as this outbreak progresses. Please don?t stigmatize anyone just because they are sneezing or because they have recently traveled to an area where there are cases of 2019-nCoV. Remember, there are screening protocols and safeguards in place and those are designed to keep us safe. Fortunately, Alaskans are resilient and we know how to prepare. As state employees, every time we experience emergencies like ?oods, ?res, earthquakes, and epidemics, our response systems improve. While the immediate health risk to Alaskans remains low, this is a serious public health concern globally and we will continue to coordinate with health care providers and our many partners both nationally and in Alaska to protect the health of Alaskans. Thank you, Adam Crum Commissioner, Alaska Department of Health and Social Services 3 gig?agent; 42?? A, Kelly Tshibaka Commissioner, Alaska Department of AdministratiOn Dr. Anne Zink Chief Medical Of?cer, Alaska Department of Health and Social Services Exhibit Page 2 of 2 3/24/2020 From: Sent: To: Subject: Attachments: Commissioners Office, DOA (DOA sponsored) Wednesday, March 4, 2020 4:10 PM Commissioners Of?ce, DOA (DOA sponsored) Novel Coronavirus (COVID-19) information and Resources for State Employees 03.04.20 COVID-19 THE DESK Novel Coronavirus Resources for State Employees Dear State EmplOyees, The State of Alaska is closely monitoring an outbreak of respiratory illness caused by a novel coronavirus (COVID-19). While there is no evidence that is spreading in Alaska at this time, cases have been identi?ed in over a dozen states, including evidence of community transmission in some are as . With the developing coronavirus situation, we want to ensure you have accurate information about the illness and are aware of resources available to you as a State employee. For this reason, the Division of Personnel and Labor relations has created a FAQ document and webpage detailing important information and resources available to State employees related to the virus. The FAQ document, which you will ?nd attached, discusses what to do if you exhibit options for State employees who must care for sick loved ones, resources available to state employees to prevent illness in the workplace, and other important information. I encourage you to take a moment to review the document when you have a time. The information contained in the Exhibit Page 1 of 2 1/2 3/24/2020 um document is also available at where it will be updated as more information becomes available. If you have any questions not addresses in the FAQ document, please contact your HR manager directly. Thanks, Kelly Tshibaka Commissioner Department of Administration State of Alaska Exhibit Page 2 of 2 2/2 3/24/2020 From: Commissioners Office, DOA (DOA sponsored) Sent: Tuesday, March 10, 2020 7:18 PM To: . SOA All employees Subject: 03.10.20 COVID-19 Update Attachments: Wash your hands flyer .pdf; workplace-guidancepdf; 03.09.20 A0 315 COVID-19 Directive.pdf FROM THE C0110 11.21 1? DEW 03.10.20 COVID-19 Update The safety of our employees is our top priority. DOA has been working with the Department of Health and Social Services (DHSS) and other agencies since the outbreak began, and it continues to coordinate closely with state leaders and partners. The state?s emergency planning has us well placed to reSpond to threats such as this, as well as provide information and prevention tips while also working to prevent undue stress or panic. Today, Governor Dunleavy issued A0 315 directing DHSS to manage and monitor developments and the State?s response. The A0 also alerted all state entities to the seriousness of COVID-19. (see attached) Prevention 0 Our partners at DHSS tell us the public should take basic prevention strategies at home and at work to help slow the spread of the virus. More information is available on the DHSS website. 0 The priority is to slow the spread of this virus. Keeping Alaskans healthy and minimizing our risk requires all of us working together. 0 State health care professionals say the easiest way to do that is to practice and stay home when sick. 0 Stay home when you?re sick, even if it?s just coughing or sneezing. Coronavirus can be very mild. We strongly encourage telework, if your position allows. Otherwise, use sick leave or contact your union for leave donations. Please contact your HR manager if you have any questions. Exhibit Page 1 of 3 1/3 3/24/2020 uzu_uommISSionerMessage.mm . Here are prevention steps to take at home and at work as recommended by the Centers for Disease Control and Prevention (CDC): 0 Wash your hands and use alcohol-based sanitizer frequently 0 Avoid touching your face, mouth, nose and eyes 0 Cover your coughs and sneezes Enhance social distancing (more than 6 feet) 0 Stay away from people who are sick 0 If you have coronavirus fever, cough and shortness of breath contact your health care provider about what your next steps may be. SOA employees should also notify their supervisor so the agency can take any necessary steps. 0 DHSS announced new recommendations to help prevent or slow the spread of COVID-19. That guidance is here. Workplace Safety 0 Frequently clean and disinfect high-touch and common surfaces. Use procurement methods authorized by your department. These EPA-approved disinfectants are often still in stock: 0 Peroxide ngpropyl Alcohol 0 If your bathroom sink does not have a handwashing reminder, please print and hang the attached ?yg as healthy-hygiene reminder! 0 Attached is new guidance from the CDC on workplace safety. Feel free to post around your workplace. Telecommuting - Supervisors are strongly encouraged to develop situational (ad hoc) telework agreements/expectations with all telework eligible employees, currently without a signed telecommute work agreement, who need to work remotely for a prolonged period due to The SOA telecommute policy is here. - DOA is deploying Microsoft Teams this week to all Departments (except Governor Of?ce staff). Teams allows employees to videoconference from video? enabled computers. Per CDC guidance, we encourage staff to use videoconferencing for meetings whenever possible, even in the workplace. OIT will be scheduling training for Teams for those who need it. . Exhibit Page 2 of 3 2/3 3/24/2020 . DOA is offering supervisors training this week on how to manage telework employees. The Division of Personnel will send an e-mail notifying supervisors oftimes for the on-Iine training. A recording will be available afterwards. . DOA is asking for information from each department on which employees need computers, phones, or Virtual Private Networks (VPN) for telecommuting or internet connectivity. Starting with those employees identified as essential for continuity of operations during an emergency, we will begin deploying equipment as expeditiously as possible. FAQs 0 The Travel Freeze issued by the Chief of Staff on March 9 applies to all out-of- state travel, even if all expenses were to be paid by a third party. 0 Other DOA FAQs are posted online here. DOA will continue to keep you posted as information develops. Feel free to direct any questions to DHSS. Questions related to SOA workforce can be directed to doa.commissioner@alaska.ggv. Thanks, Kelly State of Alaska Exhibit Page 3 of 3 3/3 3/24/2020 Governor Issues Public Health Disaster Emergency Declaration for Mike Dunleavy Officmza 0 ove l