On Wednesday, the Pima County Board of Supervisors voted to rescind its COVID-19 vaccine mandate for employees, as well as its $45 monthly penalty for unvaccinated employees. The board mentioned but didn’t vote on rehiring those fired for not getting vaccinated, with backpay, as well as reimbursing those who paid the penalty for not getting vaccinated.
Although the board rolled back its punitive measures for COVID-19 compliance, it implemented a reward for obedient county employees: 16 hours of paid time off (PTO) every year for those who stay up to date with their COVID-19 booster shots.
During Wednesday’s meeting, most of the board were reluctant to drop the vaccine mandate and $45 penalty. Only two supervisors, Grijalva and Matt Heinz, opposed rolling back the vaccine mandate. Heinz said that the county should sue the state. Bronson responded sarcastically that Heinz’s suggestion was a “good way to spend taxpayer dollars.”
Only Supervisor Steve Christy opposed the PTO, arguing that individuals shouldn’t be paid for receiving voluntary medical treatment. Christy noted that the county didn’t conduct a cost analysis. Supervisor Sharon Bronson shared Christy’s concern about the cost to the county, though she voted for the PTO. She questioned the efficacy of a yearly booster, and contended that the county didn’t offer an equal incentive for annual flu shots.
The board’s decision came five days before a new state law, HB2498, goes into effect prohibiting vaccine mandates for local government employees.
Supervisor Adelita Grijalva said that the new state law constitutes an overreach. Grijalva insisted that their county’s COVID-19 mandates worked to curb COVID-19 infections and deaths.
“I guess, go ahead and follow the law in this situation,” said Grijalva.
Supervisor Rex Scott concurred with Grijalva. He suggested that the county take next steps through the County Supervisors Association of Arizona (CSA) Legislative Policy Committee (LPC) to increase their power and authority.
“It is not just Pima County that has concerns about moves made by the legislature and governor to restrict our statutory authority as the public health authority,” said Scott.
Bronson agreed, inferring that CSA was their best option for adjusting the balance of power between county and state. Bronson referred to the ongoing issue over the vaccine mandate as “drama.”
The county first issued its vaccine mandate last August. Then last September, they issued a $45 monthly penalty for unvaccinated employees in the form of a health insurance premium surcharge. Only employees with a medical or religious exemption were excluded from the surcharge. In all, 236 employees paid that penalty.
In April, Governor Doug Ducey signed HB2498 into law, which prohibited local governments from mandating their employees to receive the COVID-19 vaccine.
Despite the inevitable unlawfulness of their mandate, the board decided in May to continue its vaccine mandate for new hires and promotions up until HB2498 went into effect.
Last month, Attorney General Mark Brnovich sued the county over the vaccine mandate: State of Arizona v. City of Tucson (CV2022-011416 in the Maricopa County Superior Court). The last action on that case took place on September 3, with a motion for compulsory arbitration.
Overall, the county received 284 medical or religious exemption requests for the COVID-19 vaccine: 257 religious, 27 medical.
The county granted 149 religious accommodations; 70 were incomplete, 19 were denied. Of the 27 medical exemption requests, the county granted 26; the one denial was due to a rescission of an offer of employment.
Watch the Pima County Board of Supervisors discuss the COVID-19 mandate below:
On Tuesday, Arizona Attorney General Mark Brnovich filed a civil rights lawsuit against Tucson over its COVID-19 vaccine mandate for employees.
In a press release, Brnovich argued that the mandate was a violation of personal liberty and an exemplar of government overreach.
“Tucson dictated a widespread vaccine mandate without regard to its impact on the liberties and civil rights of its employees,” said Brnovich. “Many of those affected are first responders, and it’s our turn to be there for them. The city’s misguided vaccine mandate is an ugly example of government overreach that we must vigorously oppose.”
Brnovich accused Tucson of punishing unvaccinated employees with unpaid suspension regardless of whether their exemption or accommodation requests were pending or approved. A majority of the city employees affected by the slim deadline were first responders.
According to the lawsuit, at least 377 city employees requested a medical exemption, and 352 employees requested a religious exemption.
The lawsuit further criticized the city’s blanket policy approach for requiring the vaccine, noting that some unvaccinated employees were or could work remotely. It alleged that the city made employment “more onerous” for unvaccinated employees.
Among those alleged more onerous requirements: the city gave vaccinated employees additional leave to recover from COVID-19 infection or to quarantine if a family member became infected with COVID-19 but denied that benefit to unvaccinated employees. Additionally, the city gave only vaccinated employees an 8-hour “floating holiday,” as well as the ability to travel outside of Pima County for job-related career enhancement opportunities. Furthermore, certain unvaccinated employees were required to undergo regular COVID-19 testing at their own expense.
In doing so, Tucson claimed its denial of equal treatment to unvaccinated employees was a means to incentivize vaccination.
“[The city of Tucson’s] purported ‘incentives’ were, severally and collectively, coercive actions that punished employees who could not comply with Defendant’s vaccine directives because of a sincerely-held religious belief and/or disability,” stated the lawsuit.
The city did put their vaccine mandate on hold last September, after Brnovich warned the city that its original five-day unpaid suspension of unvaccinated employees was unlawful. At the time, Brnovich said he would direct Arizona Treasurer Kimberly Yee to withhold the city’s state shared revenues, totaling over $175 million.
However, the city kept up its vaccine mandate. The next month, a divided city council voted to terminate the unvaccinated by December 1. Tucson’s action prompted Governor Doug Ducey to intervene. Ducey informed the city that their mandate conflicted with Arizona law.
However, the next month the Arizona Supreme Court overturned Arizona’s new law banning any level of government from requiring COVID-19 vaccine mandates.
Mayor Regina Romero and other city leaders have insisted in public messaging that their workforce was mostly compliant with their vaccine mandate, which Romero called a “vaccine policy.”
Several weeks after Tucson’s deadline passed, Ducey issued an executive order banning local or state governments from issuing COVID-19 vaccine mandates. In a response statement, Tucson Mayor Regina Romero alluded to Brnovich’s legal opinion that employers could institute their own vaccine mandates as a defense of Tucson’s mandate.
“Arizona Attorney General Brnovich already told the governor what he doesn’t want to hear. He has no authority to preempt local actions through executive orders,” stated Romero.
The overwhelming majority of people are done with COVID restrictions. Just look at the reaction when mask mandates were put to an end on airplanes last month. Cheering. Celebration. Throwing masks away. There’s nothing surprising about this—unless of course you’re a member of the liberal media.
With a desire to tackle COVID overreach head on, our own state lawmakers got to work last year. And through a series of Budget Reconciliation Bills, they took important steps to protect Arizonans from more COVID mandates.
But then in November, some of the protections were thrown out in court on procedural grounds. Thankfully, the Arizona legislature didn’t ignore the problem and got back to work this year. Now, they have passed several significant bills that are officially signed into law to protect against future COVID and government overreach…
Both the House Health and Human Services (HHS) and Education Committees approved a bill preventing K-12 schools from requiring the COVID-19 vaccine for attendance. HB2086 passed narrowly along party lines: 5-4 in the former, 6-4 in the latter.
State Representative Joanne Osborne (R-Goodyear) insisted during the Education Committee hearing on Tuesday that this bill safeguards parental rights. Osborne relayed how she heard that some high schools were considering masking mandates for student athletes.
“Some may ask why is this necessary now? It’s not being mandated. I want to make sure it stays that way,” said Osborne. “I’m not a health physician, but I am a parent. I am speaking up because this is not a childhood disease. I’m not an anti-vaxxer, but I am going to say to parents: talk to your doctors about this.”
Osborne clarified that she wasn’t opposed to vaccination requirements for other diseases, because traditional vaccinations have been established for their safety and efficacy for years.
State Representative Lupe Diaz (R-Hereford) said the vaccination requirement reminded him of China’s social credit system, and insisted that vaccination requirements for participation in public systems was tantamount to weaponization.
State Representative John Fillmore (R-Apache Junction) noted that this was only a “tiny step toward freedom.”
As a rebuttal to the logic of the bill, State Representative Judy Schwiebert (D-Phoenix) said that broad vaccine exemptions are already in place, calling the bill “redundant.” State Representative Daniel Hernandez (D-Tucson) added onto Schwiebert’s argument, arguing that Arizona already has strong parental choice laws in other regards, such as school choice.
During the HHS Committee meeting last week, State Representative Melody Hernandez (D-Tempe) said that forcing quarantine for healthy students who aren’t sick is important to keep everyone around the children safe. Hernandez claimed that the opt-out process was sufficient for parental choice.
However, Heather Rooks, a mother of four, pointed out during the Education Committee that even with religious or medical exemptions, unvaccinated students may be forcibly quarantined with an outbreak, which the state defines as two or more cases. Committee policy aides verified that this was correct.
State Representative Beverly Pingerelli (R-Peoria), a Peoria Unified School District (PUSD) governing board member, declared that children had suffered too much already.
The recent US Supreme Court decisions around mask mandates have understandably generated a great deal of media coverage and comment. Many conservatives have praised the Supreme Court’s decision to affirm the stay on the nationwide OSHA vaccine mandate. But as a lifelong prosecutor and judge, I can assure you the true and most significant factor has been overlooked. Specifically, based on the Court’s decision to vacate the stay regarding the vaccine mandate for healthcare workers (the “CMS Mandate”), the President, with no constitutional or legal authority, has been allowed to order ten million healthcare workers to receive a vaccine or risk losing their jobs and their livelihood. And while state legislatures, exercising their police powers, have imposed vaccine requirements on healthcare workers in the past, no President has imposed a nationwide mandate involving such a permanent, personal healthcare decision. Simply put, as Judge Sutton recently stated in In re MCP No. 165, unlike masks or gloves, “vaccines cannot be removed at the end of the shift.”
The underlying legal justification for overturning mask mandates on businesses is the same legal basis that should have driven a decision to roll back a mask mandate for our health care workers. In both the OSHA and the CMS cases, the issue was not whether vaccines were a wise or effective measure against the spread of COVID-19. Rather, the issue was simply whether the President has the constitutional authority, through executive branch administrative agencies, to impose nationwide vaccine mandates. In the OSHA case, the Court held, by a vote of 6-3, that because Congress never clearly delegated such authority to the President, he lacked the authority to impose such a mandate. However, in the CMS case, Justices Roberts and Kavanaugh switched their votes on the grounds that Congress had delegated such authority to the President based on a hodge-podge of Social Security statutes. But these statutes provide no such authority. Indeed, the purported delegation for the CMS mandate was less clear and more strained than the statutes offered to justify the OSHA mandate. So, what explains the puzzling switch of two purportedly conservative Justices on essentially the same issue?
It is difficult to avoid the conclusion that Roberts and Kavanaugh, at least at some level, sought to appease the public’s concern over COVID. Thus, in effort to “soften” the public’s reaction to the OSHA decision, they justified the switch by relying on the purportedly stronger policy arguments for mandating vaccines for healthcare workers to protect hospital patients from COVID. But while politics and the will of the public has rightfully driven decision-making in our Executive and Legislative branches of government, our Judiciary was set up by our Founding Fathers to make judgements based on the law and precedent. The Supreme Court does not have the authority to determine whether vaccine mandates are good policy, nor may the Court violate the Constitution in the interests of promoting political harmony or the popularity of the Court. As Justice Scalia once stated, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
With these recent decisions around mask mandates, Justices Roberts and Kavanaugh have dangerously broken through that critical differentiation, opening the Court up to the influence of the day’s ever-changing political environment. Judges must have the courage and resolve to enforce the Constitution, even when the results may be unpopular. It may appease some that the OSHA stay was upheld, but it was denied for healthcare workers. But either way, the result is the same: a precedent has been set by the Court allowing the President to use any crisis labelled a “medical emergency” to expand his power. The consequences of this decision will inflict grave damage to the rule of law. As Justice Jackson stated in his dissent in Korematsu v. United States, when the Court permits another branch to set aside constitutional protections to address emergencies, such decisions lie “about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Of course, looming in the background is the Supreme Court’s pending abortion decision in Dobbs v. Jackson Women’s Health Organization. There are sound legal grounds set forth in Dobbs for modifying, if not overruling Roe v. Wade, and allowing the legislative branch to decide the abortion issue. But mark my words, the Supreme Court, led by Justices Roberts and Kavanaugh, will land on a more muddled, middle of the road, politically crafted decision that attempts to please everyone. They have shown their hand in the CMS case.
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge.
Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.