When Gov. Ruth Ann Minner ordered drivers off the road in the aftermath of this week's snowstorm, a lot of people obeyed.
But some people, including state employees, did not.
Minner's order said that only "essential personnel" were allowed to venture onto the state's roads. But it turns out, nobody seems to know what "essential" means.
As a result, workers ranging from casino guards, to supermarket sales clerks, to state toll collectors found themselves stamped as "essential" by their employers. Some were penalized if they stayed home in what they believed was obedience to the executive orders from the governor and the mayor of Wilmington.
The governor's office has said "essential" means such emergency personnel as police and firefighters.
But state agencies allow supervisors to decide which public employees should be considered essential workers. And private employers designated their own essential staff, although state law does not recognize an exemption for essential workers in the private sector.
State officials and lawmakers agree they may have to change the law so the rules are clear.
"I don't think we even have a written definition of who's essential and what's essential, and that's something that we're talking about, particularly since there are different events when different people are going to be essential," said Allison Taylor Levine, spokeswoman for the state Department of Health and Social Services.
Public and private-sector workers complained this week in the wake of the emergency declarations that they were being penalized for not showing up to work during the snow emergencies. The News Journal on 0Friday received more than a dozen complaints from employees who said they were either not paid or forced to use a sick day or vacation day. The city of Wilmington received more than three dozen complaints this week.
State Rep. William A. Oberle Jr., R-Beechers Lot, said Friday he would introduce legislation next month. The bill would prohibit employers from not paying employees or forcing them to take vacation time when the governor declares a state of emergency that includes a driving ban. And he urged the governor to be as specific as possible about who is exempt from such a ban.
"I don't think you can draft a blanket law to address all those circumstances. Those should be addressed in the executive order," he said. "You certainly wouldn't want to have [a ban] apply to a [Department of Transportation] worker operating a snowplow, but most certainly it should apply to a worker at a Wawa."
Several other legislators of both parties have said they would consider legislation to clarify the issue.
Gregory Patterson, spokesman for Gov. Ruth Ann Minner, said the governor supports the protections for workers, but would have to take a look at the specifics of the bill. Minner would not comment.
"The governor thinks that employers should not be penalizing employees for refusing to come on the roads when it has been determined to be unsafe and illegal by the state," Patterson said.
An executive order signed by former Gov. Michael N. Castle in 1987 defines an essential employee for the state as one who is "indispensable to the emergency service function of his employing agency or department" and who "is required to assist the department or agency in meeting its emergency operational needs." But it leaves to department and agency heads the designation of whom that is.
As a result, essential employees during the snowstorm this week included not just snowplow drivers, prison guards and law enforcement, but also youth rehabilitation counselors, workers at the Port of Wilmington and toll collectors on I-95 and Del. 1 - even though driving was banned.
In certain circumstances, even a payroll worker could be considered essential to making sure other employees get paid, said Katie Horvath, spokeswoman for the state Personnel Office. Workers know in advance if they are considered essential by the state, and are expected to notify their supervisor if they're prevented from getting in, Horvath said. "If there's no substantiated reason for them not being able to make it in, they may be docked," she said. "It depends on the reason why they couldn't make it into work."
Supermarkets, convenience stores and drug stores remained open as well, with several officials saying their businesses provide essential services. Other businesses, such as those operating 24-hour plants, also had skeleton crews report to keep the facilities operating.
"We do not consider pretty much any business to be essential," Patterson said. "This is where the governor and the state police and the emergency management agency made a determination that no one should be on the road, except for the purposes of helping the state respond to the snowstorm."
Assistant Toll Operations Manager Larry Linaweaver deems the state's toll workers to be essential. In a Feb. 10 memo, he reminded toll plaza staff they would be required to report to work as scheduled, "even during a declared State of Emergency." According to the memo, "The traveling public relies on our staff every day under all weather conditions to operate the toll plazas and supply customer assistant 24 hours a day/7 days a week. That's why our positions are labeled as 'essential.' "
Those who failed to report "will be subject to appropriate disciplinary measures," the memo said. Linaweaver could not be reached for comment Friday night.
Patterson said he was unaware that toll collectors were deemed emergency workers and that he planned to look into the threat of discipline.
Employees at the state, MBNA Corp., DuPont Co. and AstraZeneca Plc, among others, were paid as normal during the state of emergency and didn't have to take time off. Essential state employees who reported for work were paid their regular hourly rate, plus equal time off.
Staff reporter Lulady B. Tadesse contributed to this story. Reach Jonathan D. Epstein at 324-2880 or jepstein@delawareonline.com.
