by Terri Jo Neff | May 23, 2021 | News
By Terri Jo Neff |
Business owners thinking of requiring proof of COVID-19 vaccination as a condition of employment may want to consider the latest advisory from the Occupational Safety and Health Administration (OSHA).
According to OSHA, an employee’s adverse reaction to a COVID-19 vaccine is recordable on the company’s OSHA recordkeeping log if the reaction stems from a work-related, mandated vaccination and the incident meets at least one other recording criteria, such as time away from work, medical treatment beyond basic first aid, or restricted work duties or job transfer.
Despite the advisory to employers, OSHA and other federal agencies have announced efforts to encourage COVID-19 vaccinations in the workplace. That is why OSHA, which is part of the U.S. Department of Labor, does not require employers to report an employee’s adverse reaction to a recommended vaccination, even if the employer pays for or arranges for the vaccination.
“OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time,” the website reads, adding that the vaccination “must be truly voluntary. For example, an employee’s choice to accept or reject the vaccine cannot affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”
In a related matter, OSHA has weighed in on employers requiring employees to sign liability waivers in the event of exposure in the workplace to the SARS virus which causes COVID-19. While the agency does not take a position for or against waivers, its website makes clear that the existence of a waiver does not preclude an employee’s right to file an Occupational Safety and Health Act complaint.
“The worker continues to have the right to file a safety or health complaint under section 8(f) and/or a retaliation complaint under section 11(c), regardless of any language contained in the waiver.”
The OSHA website also provides employers and employees with information about the requirement for reporting in-patient COVID-19 hospitalizations stemming from workplace exposure. Such reporting is only required if the hospitalization occurs within 24 hours of the exposure, according to the website.
by Terri Jo Neff | May 23, 2021 | News
By Terri Jo Neff |
The Arizona Supreme Court is set to hear oral arguments next month in a case that involves whether the Cochise County Board of Supervisors violated one or more state laws in appointing one of their own to a coveted court position in 2019 without asking if anyone else was interested in the job.
During the June 3 hearing, the justices must decide whether the legal challenge of then-supervisor Pat Call’s appointment to the Sierra Vista Justice was brought forth by someone who had standing to do so. An appointment that Arizona Attorney General Mark Brnovich has described in two legal briefs as “unlawful.”
The case centers on the February 2019 appointment of Call as justice of the peace for Cochise County’s busiest justice court, where more than half of the county’s felony prosecutions start. On the day of his appointment, Call took part in public discussions about how to fill the position and even suggested the board forego forming a committee to seek candidates.
He also took part in a non-public, executive session after which the other two supervisors – Ann English and Peggy Judd- immediately voted Call in as justice of the peace. There was no advance notice of Call’s interest in the position nor that he was being considered for appointment. There was also no opportunity for public comments.
Call served as justice of the peace from March 1, 2019 through Dec. 31, 2020. He did not stand for election in last November.
Brnovich has been harsh in his criticism of the supervisors’ actions and he has argued in legal briefings that a judge could still impose sanctions on Call, English, and/or Judd. He has also weighed in on who has standing to bring complaints involving Arizona’s Open Meeting Law and Conflict of Interest statute.
One of those people with standing, Brnovich argues, is David Welch, a Sierra Vista resident who had a misdemeanor case pending in the justice court in February 2019. Welch sued in Cochise County Superior Court just days after the supervisors’ vote in an attempt to void Calls’ appointment due to alleged open meeting and conflict of interest violations.
Welch’s lawsuit was dismissed by an out-of-county judge for a lack of standing to bring the challenge. The judge also said that even if a private citizen had standing, any errors or liability connected to the February 2019 vote were resolved when English and Judd ratified Call’s appointment the next month.
Ratification is a legal process allowing a public body to reaffirm an earlier vote that may have run afoul of Open Meeting Law. But as Brnovich pointed out to the Arizona Court of Appeals, there is nothing in the ratification process which automatically indemnifies a public official from a violation of state law.
He also pointed out there is no ratification process in Arizona’s Conflict of Interest statute, under which public officers like Call are required to announce “a substantial interest in any decision of a public agency” and then refrain from participating in such decision “in any manner.”
The Arizona Court of Appeals overturned the lower court judge’s ruling on standing, finding that Welch, as a taxpayer within the legal boundaries of the Sierra Vista Justice Court, could challenge the appointment. The court of appeals also found Welch had “sufficiently pleaded violations of Arizona’s open-meeting and conflict-of-interest statutes.”
Normally that would have sent the case back to the lower court for further proceedings on the merits of Welch’s case. However, Cochise County officials sought review from the Supreme Court and on May 17 the attorney general filed his second amicus brief about the “unlawful” appointment, the remedies available to a court, and his concern with a taxpayer status threshold for determining standing.
Brnovich points out that standing is already defined in Open Meeting Law as any person “affected by” an alleged violation. Utilizing taxpayer status for status would likely preclude some individuals affected by a violation from being able to assert a claim, he argues. An example is Arizona’s open enrollment policy which allows students to attend a school in one district even if they live in another district’s legal boundaries.
“If a school board were to engage in secret decision-making or other alleged OML or conflict of interest violations, out-of-district parents could be left without standing—even though they would be affected by such violations—because they are not taxpayers of the district,” the brief states.
Oral arguments can be viewed live from the Arizona Supreme Court on June 3 at https://www.azcourts.gov/AZ-Supreme-Court/Live-Archived-Video
by Terri Jo Neff | May 22, 2021 | News
By Terri Jo Neff |
Four members of the U.S. Congress -including two from Arizona- sent a letter this week to the U.S. Department of Justice (DOJ) criticizing one of its deputies for “unnecessarily” weighing in on the Arizona State Senate’s ongoing audit of Maricopa County’s election process.
Representatives Andy Biggs and Paul Gosar, both Republicans from Arizona, and Reps. Matt Gaetz (R-Florida) and Marjorie Taylor Greene (R-Georgia) call a May 5 letter from DOJ attorney Pamela Karlan to Senate President Karen Fann “an attempt at intimidation, with the goal of convoluting this important audit.”
Fann is one of two state senators who signed a subpoena in January which led to Maricopa County officials being required to turn over election department records, hundreds of voting machines, and the nearly 2.1 million ballots cast by Maricopa County voters in the 2020 General Election. Karlan’s letter suggested either the Senate or the auditors may be in noncompliance with federal law, and that the elections records and the ballots “are at risk of damage or loss.”
According to Biggs, Gaetz, Gosar, and Taylor Greene, many of Karlan’s comments were previously expressed by what the four representatives call “three left-leaning organizations,” suggesting the DOJ is “more concerns with your political fellow-travelers than election integrity.” The May 17 letter signed by the four representatives also told Karlan they are “confident in the integrity” of the ongoing audit which is set to run through the end of June.
“In a constitutional republic, the most important thing you can do is make sure the integrity of our election system is protected, free, transparent, and open,” their letter states.
That letter to Fann is not the first received by the senate president in connection to Karlan’s concerns about the audit. On May 7, the Public Interest Legal Foundation (PILF) sent a letter to Fann urging her to push back on Karlan’s concerns, which PILF President J. Christian Adams and PILF Litigation Counsel Maureen Riordan characterize as threats.
Adams and Riordan told Fann that Karlan “is doing the bidding of, and acting as a surrogate for, the Democratic Party, not as an objective law enforcement official and representative of the U.S. Department of Justice.” They added that Karlan “is engaging in a partisan abuse of power well outside the traditions of the Department as well as the delegation of power under federal statutes and the controlling legal authority governing those statutes.”
PIFL, a 501(c)(3) public interest law firm, urged the Senate President to resist responding to Karlan’s “inappropriate and unjustified letter” and offered to share additional insights into the DOJ’s alleged politically motivated effort if Fann is interested. As of press time Fann had not replied to the PIFL letter, according to the group’s spokesperson.
by AZ Free News | May 22, 2021 | News
A new survey showing that the vast majority of Arizonans support reducing the personal income tax rate was released this week by Americans for Prosperity-Arizona. Voters believe a tax reduction is important to spur economic growth and allow Arizonans to keep their own money, according to the survey.
According to the nonpartisan Tax Foundation, Arizona has one of the highest marginal income tax rates in the country. Arizona also has a nearly $4 billion surplus for the 2022 fiscal year.
Americans for Prosperity-Arizona (AFP-AZ) is supporting a plan that would reduce the state personal income tax rate to 2.5% for all taxpayers, except for the highest bracket who will pay 4.5%, beginning in 2023,
AFP says the topline results of the survey demonstrate the following:
• Nearly two-thirds of Arizona voters believe it is time to reduce the personal income tax to make it flatter and fairer.
• 66% of surveyed voters said it’s very important to allow Arizona families to keep more of their own money, in addition to 62% saying it’s very important to allow small businesses to pay less in taxes so they can use their own money to grow and create jobs.
• Ensuring Arizona remains competitive with nearby states who have no income tax was also another reason surveyed voters supported reducing the income tax rate, with 53% of surveyed individuals saying that’s a very important reason as they considered the proposal.
“While Washington is working to pass some of the largest tax hikes in history, our state leaders are taking a different approach by letting Arizonans keep more of what they earn. Government digging deeper into our pockets won’t help small businesses hire more workers or meet the needs of Arizona families,” says AFP-AZ State Director Stephen Shadegg.
“Arizonans support this this pro-growth plan that would cement our state as a leader on tax reform and ensure we remain competitive with nearby states who don’t have an income tax. We are connecting with Arizonans across the state to tell them about this plan and enable them to tell their legislators they need to act now. We look forward to igniting Arizona’s economic recovery by making our tax system simpler, fairer, and flatter,” concluded Shadegg.
by AZ Free News | May 22, 2021 | News
On Friday, Governor Doug Ducey today signed legislation, sponsored by Rep. Jeff Weninger, that allows bars, liquor stores and restaurants to sell cocktails to-go. The bill is intended to mitigate the damage done to businesses due to the governor’s draconian shut down order due to the COVID-19 pandemic.
In March 2020, Ducey issued his draconian Executive Order restricting enforcement of regulations that prohibit sale and delivery of alcoholic beverages with the purchase of food to help mitigate the disasterous financial consequences of the pandemic-related pause on certain business operations.
House Bill 2773 permanently allows Arizona businesses the opportunity to offer to-go cocktails beyond the pandemic.
by Corinne Murdock | May 21, 2021 | News
By Corinne Murdock |
Senators Mark Kelly (D-AZ) and Kyrsten Sinema (D-AZ) both voted against an amendment prohibiting the cancellation of the border wall contracts back in February. Yet, both senators have since lamented President Joe Biden’s policymaking for initiating the border crisis and promptly neglecting it. They went so far as to say that the federal government failed Arizona. Sinema even urged the Biden Administration to take “bold action.”
Not only would the amendment have prohibited the cancellation of contracts – it would have prevented the Biden Administration from assuming the penalties for cancelling the contracts, and repurpose the wall-building funds for paying off the penalties. Senator Ron Johnson (R-WI) introduced the amendment, numbered 542. The Senate split on the vote, 50-50.
“To establish a deficit-neutral reserve fund relating to protecting American taxpayers and the border, which may include prohibiting the cancellation of contracts for physical barriers and other border security measures for which funds already have been obligated and for which penalties will be incurred in the case of such cancellation and prohibiting the use of funds for payment of such penalties,” reads the amendment’s summary.
In total, the legislation saw nearly 900 amendments introduced.
Kelly has consistently been against a border wall since his campaign. In a debate last October with former Republican Senator Martha McSally, Kelly called border walls “17th-century solutions for 21st-century problems.” Kelly instead called for an investment into more technology and border patrol agents.
Although Kelly didn’t specify what he meant by technology, it is likely he was referring to an expansion of current technologies – such as cameras, radars, imagers, and sensors.
Similarly to Kelly, Sinema has said that increasing the amount of border patrol agents was a more “practical, realistic solution.” In the same interview, Sinema acknowledged the importance of border walls, but said they weren’t enough.
During her campaign trail, Sinema said that immigration and securing the border were her top priorities. She repeatedly called the border wall a “waste of taxpayer money.”
Not long after she was elected, Sinema abstained her vote when it came to Trump’s proposed spending plan totaling $5 billion for a wall.
As of April, U.S. Customs and Border Protection has tracked nearly 180,000 enforcement encounters. Those numbers mark an unprecedented surge in illegal border crossings over the last few administrations.
Corinne Murdock is a contributing reporter for AZ Free News. In her free time, she works on her books and podcasts. Follow her on Twitter, @CorinneMurdock or email tips to corinnejournalist@gmail.com.
