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cities vs state on vaccines
PHOENIX – Tucson is no longer at risk of being financially penalized for its vaccination mandate program.
Senator Vince Leach, R-Tucson, withdrew his request that Attorney General Mark Brnovich investigate whether part of city policy to require all employees to be vaccinated violates the law of the ‘State. The move most immediately means that Tucson is avoiding the threat of Brnovich ordering the state treasurer to withhold more than $ 100 million in state revenue sharing dollars.
But Leach told Capitol Media Services that the underlying problem is far from dead. He said other ongoing federal disputes over vaccination warrants overshadow his specific complaint about the city’s refusal to grant religious exemptions to any worker who requests one.
Leach is not the only one who has apparently given up on forcing Tucson to change its policies. An aide to Gov. Doug Ducey said there had been no follow-up to a complaint sent to the city last month by Anni Foster, the governor’s legal adviser, warning Tucson that what he was doing was going to the against a new state law that came into effect on September 29.
All of this means Tucson can continue in his tenure without fear of financial penalty – and he doesn’t need to change the way he handles requests for religious exemptions – at least for now.
At the heart of the problem is the council’s decision in August to require more than 4,000 workers to be vaccinated or face a five-day unpaid suspension.
The city suspended the app in September after Brnovich said the move would violate a new state law banning vaccination warrants by government agencies.
Since then, however, Maricopa County Superior Court Judge Katherine Cooper has struck down that law, ruling that it – and a few others – had been illegally enacted. This decision was upheld by the Arizona Supreme Court.
But what was not before Cooper and has not been rescinded is another provision which states that all employers “must provide reasonable accommodation” when a worker requests an exemption based on a claim. of “sincere religious belief”.
Foster, in his letter to the city, said the problem with city policy is that it says the employee can “request” religious accommodation, and that there will be an “interactive process” for “ determine precise limits ”. She argues that the law really does not give the city a choice.
Leach then used this letter to ask Brnovich to investigate. He echoed Foster’s claim that once a worker asserts a sincere religious belief, the city cannot question it.
What gives Leach his power is a 2016 law that not only allows lawmakers to demand an investigation, but forces Brnovich to investigate within 30 days. Specifically, this law says that if Brnovich finds that a local law or policy is against state law, he can order the state treasurer to withhold certain revenue sharing dollars.
But Tucson wasn’t giving up without a fight.
In a letter to the Attorney General’s office, City Attorney Mike Rankin said the section of law that Foster and Leach cite simply does not apply to the city. In fact, he said, it is not possible.
It begins, he said, with the fact that the language regarding the provision of housing to workers who claim a religious exemption itself has an exemption if it would represent more than a minimal cost “for the operation of the company. the employer’s company “.
“The city of Tucson – and any municipal or county government – is not engaged in a ‘business’,” Rankin wrote.
And there’s more.
He pointed out that lawmakers had tried to ban cities from imposing any sort of vaccination mandate, at least until that law was repealed.
“How could the legislature have wanted the law to compel the city to provide religious accommodation for a requirement that … the legislature intended to prohibit the city from imposing in the first place?” ” He asked.
Rankin suggested that if Brnovich pushed the issue forward, he could end up in court. Rankin said that, according to the city, the wording on the religious exemption was enacted illegally – and is just as bad as – the other provisions Cooper has already declared illegally enacted.
Leach, in explaining his decision to withdraw his request for an investigation, said it had become evident that the legal issues were far too complex to attempt to get a final decision from Brnovich within the 30-day period in which the law obliges him to act.
“It wasn’t going to be a clear picture,” he said.
Tucson Mayor Regina Romero told Capitol Media Services that the provision in question should never have been passed in the first place.
“I wish our lawmakers and state governors would spend as much time on the many issues facing our state, including the current increase in COVID-19 cases, as they are trying to micromanage the city of Tucson, ”she said.
“They knew it was a futile effort from the start and without any legal basis,” Romero continued. “Stop wasting our time and taxpayer dollars. “
Romero said that at last week’s council meeting, 88% of the city’s workers were vaccinated. Adding those who received exemptions brings compliance to 98%, leaving only 86 employees in violation.
“The City of Tucson’s immunization policy has proven to be extremely effective in increasing our immunization rate and protecting the community we serve,” she said.
Leach said withdrawing her complaint does not mean Tucson is retaining its vaccine mandate. He pointed out that there are other cases regarding vaccine requirements pending in federal court.
These lawsuits, however, challenge various actions of the Biden administration. This includes a vaccination mandate for federal employees and contractors as well as a new Occupational Safety and Health Administration rule requiring either vaccination or regular testing of workers at any company with more than 100 workers.
But even if the challengers win, neither is likely to affect the city’s own decision or force the council to quash its own tenure.
What’s left? The possibility that lawmakers will try to reinstate the ban on mandatory vaccines for public servants when the legislature is called in January.
In rescinding that requirement in September, Cooper never addressed the legal question of whether lawmakers have the power to prevent such local ordinances. Instead, she only concluded that the method they used to approve the ban was unconstitutional because they added it to unrelated legislation and failed to properly notify the public of its inclusion in the ban. The law project.
Howard fischer
Mr. Fischer, a longtime award-winning journalist from Arizona, is the founder and operator of Capitol Media Services.
Twitter: @azcapmedia
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