16.32 COVID-19 Health and Safety Protocols

PART 1: PURPOSE AND AUTHORITY

1. Authority: This rule is issued pursuant to the NMSU President’s authority as delegated by the NMSU Board of Regents, relating to the declaration on March 11, 2020 of the COVID-19 global pandemic, which due to emerging variants has resulted in prolonging the serious health risks presented by a highly contagious communicable infectious disease.
2. Ratification and Supplement to NMSU’s Pandemic Action Plan: This rule is issued for the protection of the health, safety and welfare of the members of the NMSU Community, and the surrounding local community they interface with. It ratifies and supplements the pandemic action plan containing COVID-19 informational updates and conditions of employment relating to maintenance of a safe academic and work environment during the COVID-19 extended pandemic, published and regularly updated at https://now.nmsu.edu/index.html. The COVID-19 Health and Safety Protocols published at that site may also be referred to as the Implementing Standards and Guidelines associated with this rule.
3. Expedited Incident Response: This rule provides an expedited incident response for employees and Visitors, including an alternate administrative/disciplinary process that will apply in cases involving employees and Visitors alleged to have violated NMSU’s COVID-19 Health and Safety Protocols. Incidents involving students will be addressed by the Office of the Dean of Students or the Graduate School, as appropriate. (ARP 5.20 – 5.26, Student Social Code of Conduct)

PART 2: SUMMARY

1. Rationale: As a general rule, members of the NMSU Community (See Definition at 3.4) are obligated to follow NMSU policies, rules and procedures. For employees, this is a condition of continuing employment. For students, it is a condition upon admission. For Visitors, it may become a condition of continuing access to campus. In the event of a policy or rule violation, administrative action may be taken in accordance with this rule commensurate with the seriousness of the violation; if criminal sanctions also apply, that is outside the scope of this rule. This rule is needed to address violations of health and safety protocols enacted during the global pandemic declared for COVID-19 that if not addressed swiftly, will fail to protect the NMSU Community from exposure to persons potentially carrying COVID-19 or one of its variants.
2. Expectations Relating to COVID-19 Safety Protocols: This rule provides the NMSU Community with the expectations for compliance with NMSU’s COVID-19 Health and Safety Protocols. It also provides guidance in the event of perceived or reported non-compliance. Some of the health and Safety protocols will be mentioned generally herein, but the official source for current requirements is https://now.nmsu.edu/index.html, which centralizes the information being distributed regarding NMSU’s pandemic action plan for the prevention of and protection from exposure to the risks presented by COVID-19. All members of the NMSU Community are required to read and abide by these.  Other violations which might also be addressed pursuant to this rule are those that relate directly to the creation of a public health and safety risk of potential exposure to COVID-19, such as falsification of documents (e.g., vaccination, test results or other health records) or willful disregard of a supervisor’s directives enforcing NMSU COVID-19 Safety Protocols.
3. Synopsis of Process for Alleged Public Health Safety Violations: This rule provides the exclusive process applicable in the event of alleged failure by employees and Visitors to abide by NMSU’s COVID-19 Health and Safety Protocols.

If the facts support a finding of a violation, notice of these facts, along with the proposed administrative action, will be provided to the involved member of the NMSU Community to provide an opportunity for them to state their position and provide additional facts for consideration prior to administrative action being taken. After this factual review meeting, which may also be conducted through written submittals, a determination will be issued, which may be subject to appeal, as provided in Part 5.

PART 3: DEFINITIONS

1. COVID-19: A global pandemic that was declared as national emergency in March 2020, and now includes distinct emerging variants indicated to be equally or more contagious than COVID-19 by the federal Center for Disease Control and New Mexico Department of Health.
2. COVID-19 Symptoms: Fever, chills, cough, shortness of breath and sore throat. Refer to https://now.nmsu.edu/index.html for updates.
3. Direct Threat: A significant risk of substantial harm that cannot be reduced or eliminated by a Reasonable Accommodation. Whether or not someone poses a Direct Threat in the work or academic environment will be based on objective factual information, not subjective perceptions or irrational fears:
   1. Duration of risk;
   2. Nature and severity of the potential harm;
   3. Likelihood that potential harm will occur; and
   4. Imminence of the potential harm.
4. NMSU Community: NMSU officials, employees, students, as well as Visitors to campus.
5. NMSU COVID-19 Health and Safety Protocols: The rules and procedures or other protocols posted at https://now.nmsu.edu/index.html pertaining to the prevention of or protection from COVID-19.
6. Reasonable Accommodation: A change in the work or academic environment that allows a person with a disability to have an equal opportunity to participate (apply for jobs, perform essential functions, enjoy equal benefits and privileges of employment or academic programs and activities).
7. Visitor: A Visitor includes and is not limited to affiliates, contractors, vendors and the general public.

PART 4: KEY POLICY STATEMENTS

1. Research Based Informational Site with Instructions for Personal Conduct: NMSU is uniquely situated to have the most current access to research relating to various aspects of the COVID-19 global pandemic such as: testing, vaccinations, effectiveness, contact tracing, rates of infection, and emerging variants and re-infection. The NMSU System President has regularly issued COVID-19 emergency updates and directives (referred to in this rule as the NMSU’s COVID-19 Health and Safety Protocols), posted at https://now.nmsu.edu/index.html. These protocols are based on pronouncements by the U.S. Centers for Disease Control (CDC), the New Mexico Governor and New Mexico Department of Health and the NMSU Board of Regents and the NMSU System President. In the event of a conflict between the requirements by these authorities relating to the work and academic environments, the NMSU guidance will govern.
2. Adherence to COVID-19 Health and Safety Protocols a Condition of Employment: Unless subject to a Reasonable Accommodation consistent with COVID-19 Health and Safety Protocols based on disability, serious medical condition or non-discrimination under Title VII (approved by OIE or SAS) or to an alternate work arrangement (approved by the employee’s supervisor and dean/vice president), members of the NMSU Community must adhere to the COVID-19 Health and Safety Protocols published at https://now.nmsu.edu/index.html, which apply to each member of the NMSU Community as a condition of employment, condition upon admission or condition required to conduct business with NMSU or for access to NMSU public facilities.
3. Fundamental Principles: In addition to material posted at https://now.nmsu.edu/index.html, the following COVID-19 health and safety protocols apply in the context of COVID-19:
   1. Members of the NMSU Community may be subject to additional COVID-19 protective measures adopted by individual departments, as approved by NMSU administration as advised by the CART (e.g., screening, attendance records for purposes of contact tracing) and reasonably related directives from a supervisor or employee in a position of authority (e.g., project managers, event organizers, faculty, all members of management and NMSU appointed officials).
   2. Members of the NMSU Community must be honest in their dealings with the university and with those they interact with, including but not limited to: 1) when completing questionnaires or surveys from NMSU; 2) when experiencing COVID-19 Symptoms; 3) when self-isolating and 4) when seeking a Reasonable Accommodation from a required COVID-19 Health and Safety Protocols.
   3. As the NMSU COVID-19 Health and Safety Protocols are updated, members of the NMSU Community must continue to review and follow them, unless subject to a Reasonable Accommodation.
4. Roles/Responsibilities of Supervisors and Employees in Position of Authority: All members of management including supervisors, lead employees and those in positions of authority who represent NMSU by virtue of their employment have a duty to inform, educate, and potentially warn, members of the NMSU community using the material posted at https://now.nmsu.edu/index.html. The messaging should include that NMSU hopes to avoid having to take action to remove any person from campus, but in the face of a global pandemic such as this one, it is a necessary option in the interest of protecting the public’s health and safety.  Any NMSU representative invites, dares or otherwise encourages others to disregard or violate university policy, particularly in a classroom or other closed environment, is violating NMSU’s COVID-19 Health and Safety Protocols and putting people at risk.
5. Reports of Violation; Assessment: Each reported violation will be assessed strictly on whether the facts support a violation of the COVID-19 Health and Safety Protocols in effect at the time of the reported incident. The consequence for a violation will depend on the facts evaluated on a case-by-case basis and whether an unreasonable risk of harm, Direct Threat or actual harm was created through action or inaction.
   1. Inadvertent, neglectful or other unintentional instances of noncompliance may be addressed with information and education and/or a warning from an appropriate NMSU representative, provided that no unreasonable risk of harm, Direct Threat or actual harm resulted. The administrative consequences for the same infraction may vary based on the nature of the public health risk created by the violation.  For example, someone not wearing a mask inside a large conference room only occupied by one or two people would result in a less serious consequence than someone not wearing a mask inside a crowded restroom in between classes in an academic building.
   2. Repeated infractions, even if not resulting in unreasonable risk of harm or Direct Threat or actual harm, will justify a more severe administrative consequence, including suspension without pay, demotion and involuntary termination (employees) or issuance of a No Trespass Directive (Visitors).
   3. A deliberate refusal to abide by COVID-19 Health and Safety Protocols, Direct Threat or actual harm increasing the risk to other members of the NMSU Community, and in turn affecting NMSU and the institution’s obligations to protect the work and academic environments, will be addressed with more serious action, including suspension without pay, demotion and/or termination (employees) or issuance of a No Trespass Directive (Visitors), depending upon the actualities as they are determined on a case-by-case basis.
6. Non-Discrimination: New Mexico State University (NMSU) is dedicated to providing equal opportunities in our employment and learning environments. Decisions made pursuant to this rule will not discriminate on the basis of any protected category (age, ancestry, color, disability, gender identity, genetic information, national origin, race, religion, retaliation, serious medical condition, sex (including pregnancy), sexual orientation, spousal affiliation, or protected veteran status in its programs and activities).
7. Amendment: As with any university policy or rule, the university administration reserves the right to amend it at any time.

PART 5: KEY PROCESS ELEMENTS

1. Violations of COVID 19 Health and Safety Protocols: Due the nature of the risk (spread of communicable infectious disease) and the need for swift action to maintain a safe campus, this rule authorizes an expedited, remote process by which the facts relating to violation of COVID-19 Health and Safety Protocols will be heard and decided, including any proposed administrative action. This rule’s expedited processes, based on failure to fulfill conditions of employment in violation of COVID-19 Health and Safety Protocols, will be used in lieu of other faculty (ARP 10.50) or staff (ARP 10.10) disciplinary processes. To the extent that consequences involve a loss of pay or job position, due process will be provided pursuant to this rule. Timelines will be reasonable and flexible, yet expedited so as to reduce or eliminate safety risks created by the violation(s). The factual review meeting also applies to Visitors to campus and the proposed administrative action will include the potential for issuance of a No Trespass Directive.
2. Factual Review Meeting When COVID19 Health and Safety Protocol violations are reported, the employee’s supervisor in consultation with Employee & Labor Relations and/or the Office of the Provost (employees with faculty rank) as appropriate. For Visitors alleged to be in violation, the appropriate NMSU representative will gather the relevant facts and document them. If the facts confirm a violation, a notice will be issued outlining the facts, including witness statements if any, and the proposed administrative action, and set a date and time for a factual review meeting.  The involved employee or Visitor will be given an opportunity to provide a written response and any additional facts or evidence they would like to be considered, if any, before a decision is made taking action.
3. Decision: Once the factual review meeting is completed, a decision will be issued on behalf of NMSU explaining the factual basis/es and the policy or rule violation supporting the action to be taken.
   1. For at will, non-faculty contract, non-regular (e.g., temporary, seasonal) and probationary employees, the decision following the factual review meeting will be final.
   2. For decisions imposing an involuntary termination of employment, demotion or suspension without pay of a regular, non-probationary employee (above-listed types of employment excluded), the employee will be provided the opportunity to appeal.
   3. In the event of an appeal, the effective date of the administrative action may be held in abeyance provided the employee agrees to use accrued leave the employee is entitled to be compensated for upon termination, or agrees to be placed on leave without pay status.
   4. Non-faculty employees hired pursuant to an employment contract who may be found to have violated COVID-19 Health and Safety Protocols via a factual review meeting will be subject to corrective action in accordance with their employment contract.
   5. If a Visitor is found to have violated COVID-19 Health and Safety Protocols via a factual review meeting and the outcome is issuance of a No Trespass Directive, the Visitor may seek any review indicated on the face of the No Trespass Directive.
4. Appeal Hearing: By memo to the Director of Employee and Labor Relations (for non-faculty employees) or to the Associate Provost for Academic Affairs (faculty employees), employees for whom the decision is not final (See 5.2 A. and B.) may request a de novo hearing before an appeal hearing panel.
   1. The appeal hearing panel will typically be comprised of representatives from: President’s Office; Human Resource Services (when involved party is non-faculty employee) or Academic Affairs (when involved party is faculty); Aggie Health and Wellness; Environmental Health and Safety & Risk Management and a faculty member informed on COVID+19.
   2. The appeal hearing may be conducted through technological or electronic means.
   3. The NMSU representative will present the facts which supported the administrative action taken, followed by the involved employee or Visitor presenting their position and any facts supportive of their defense to the factual findings or to the type of administrative action taken. Witnesses may be called, and the involved faculty or Visitor may elect to cross examine; legal counsel may participate. The hearing will be informal and conducted in a fair manner.
   4. Any member of the appeal hearing panel may question either of the parties or any witness.
   5. The appeal hearing panel may deliberate in closed session and will subsequently issue a final written decision on behalf of NMSU, based on a preponderance of the evidence standard, confirming or modifying the factual findings on whether or not NMSU COVID-19 Health and Safety Protocols were violated, and upholding, modifying or reversing the administrative action.
5. Authorization of Rule Administrator Guidelines and Standards: The Responsible Administrator may issue and amend guidelines and standards corresponding to this rule, which will include incorporation by reference the COVID-19 Health and Safety Protocols, posted at https://now.nmsu.edu/index.html and may also include templates, factual review meeting process, appeal hearing process, FAQS or other illustrative documents.