COVID-19 exhaustion is not a medical term, although what it represents can be as emotionally fatiguing as the virus can be physically draining. It describes the sense of frustration and weariness that comes from reacting 24/7 to a pandemic for the last 20 months.
AZ Free News looks at some of the events which occurred last week in federal courthouses, corporate offices, and the Arizona statehouse which illustrate the confusing regulations, legal rulings, and political posturing commonly found with COVID-19 exhaustion.
Private vs. Public Employees
On Dec. 15, Gov. Doug Ducey issued yet another executive order concerning COVID-19. Among the nine-page order are 19 words which seemingly ensure municipal, county, and state officials cannot impose any COVID-19 vaccination on citizens, businesses, or public employees:
“No person shall be required by this state, or any city, town or county to obtain a COVID-19 vaccine…”
Yet just two days later, Tucson Mayor Regina Romero issued a dismissive response to Ducey’s order as she doubled down on enforcing a city ordinance passed in November that allows for termination of any city employee who did not provide prove of vaccination or had not gone through an exemption process.
Meanwhile, the illnesses and deaths of several public safety workers across Arizona who contracted COVID-19 are being classified as work-related, which allows for various financial benefits for the employee or family. At the same time, a growing number of private companies have discontinued assistance for unvaccinated frontline employees who contact COVID-19.
The latest employer to do so is Kroger Co., which owns 2,700 supermarkets and multi-department stores across the country under several names. In Arizona, Kroger operates the Fry’s Food Stores.
According to Kroger’s announcement, any of the company’s 465,000 employees who are not vaccinated will no longer be eligible for two weeks of paid emergency leave if they fall ill. In addition, a $50 monthly health insurance surcharge will soon be imposed onunvaccinated nonunion employees.
A similar COVID-19 health plan surcharge was implemented by Pima County against several hundred of its employees who have not been vaccinated. The county’s action, which is expected to cost employees $100 a month, is the subject of a federal lawsuit filed last week by the Arizona Conference of Police and Sheriffs (AZCOPS).
Another problem that has developed as a result of various vaccination mandates is the uneven -and potentially discriminatory- decisions by companies and government entities in response to applications for religious and medical exemptions. There are also concerns over employee privacy.
The City of Phoenix issued its own COVID-19 vaccination mandate back in November, citing the city’s status as a federal contractor. The city’s 14,000 or so employees were given a Jan. 18 deadline, along with the option of applying for a medical or religious exemption.
Many employees balked at the exemption process after learning they would have to reveal deeply personal medical and religious information to fellow city employees with the Human Resources, Equal Opportunity, and Law departments.
The Phoenix mandate is on hold while the federal court address challenges to the Biden Administration’s federal contractor vaccination mandate. If reactivated, the city’s mandate allows for termination.
Federal Court Decisions
While a legal challenge or two have been threatened against Ducey’s latest executive order, Arizonans who work for the federal government have not had success challenging President Joe Biden’s executive order that requires federal employees to get the shot.
But for workers of private companies with 100 or more employees, for those who work for a federal contractor, or whose employer receives Medicare & Medicaid funds, things get a whole lot murkier.
A federal appeals court recently put on hold the Centers for Medicare & Medicaid Services rules which require staff at any facility which participates in the Medicare and Medicaid programs to get the COVID-19 vaccination, regardless of whether that staff member has patient contact.
But even if that rule never goes into effect, healthcare workers in Arizona may not have recourse to challenge any employer mandated vaccination policy, thanks to Ducey’s Dec. 15 executive order. The governor specifically allows “a health care institution licensed pursuant to A.R.S. Title 36, Chapter 4” to require its employees to be vaccinated, although a medical and religious exemption must be offered.
There is also a Biden executive order which requires federal contractors and subcontractors to implement a mandatory employee vaccination policy. A federal court order put that mandate on hold earlier this month, but the U.S. Department of Justice continues to argue the President has authority to impose such a requirement on America’s private businesses.
The Biden Administration mandate with the biggest reach is one issued by OSHA that affects more than 80 million workers. An emergency OSHA rule requires companies with 100 or more employees to implement COVID-19 vaccination protocols or face financial penalties. The OSHA rule also requires unvaccinated workers to undergo frequent testing, and only provides for a medical exemption.
A federal court had put the OSHA rule on hold due to legal challenges from multiple states and employers. However, last Friday a federal appellate court allowed the mandate to go into effect pending any possible action by the U.S. Supreme Court which was asked on Saturday by several parties to get involved sooner than later.
It did not take long for OSHA to react to last week’s lifting of the hold. The agency issued a statement Saturday warning those companies with more than 100 employees to comply by Jan. 10 or face citations and penalties.
The Trauma Surgeon
Mental COVID-19 exhaustion can also be caused by the frustration brought on by inane vaccination mandate protocols. A glaring head-scratcher of such a mandate comes from Phoenix-based Banner Health, Arizona’s largest private employer.
Until recently, Dr. Devin L. Gray held medical privileges at several Banner hospitals, just as he does at many other Maricopa County hospitals. But Gray, a surgeon with 30 years of experience, is no longer allowed to use his specialty skills as a life-saving trauma surgeon at Banner’s facilities.
The reason? A Banner Health administrator did not find Gray’s request for a religious exemption to the company’s vaccination mandate to be sincere. The other hospitals -Arizona General Hospitals, Chandler Regional Medical Center, Mercy Gilbert Medical Center, and Mountain View Medical Center- did.
Gray has asked the Arizona Attorney General’s Office to look into the exemption inconsistencies, as well as the amount of deeply personal information some companies are demanding from employees who apply for a medical or religious exemption.
In the meantime, Gray has been told by a Banner Health executive that he can be treated as a patient at their facilities. He is also free to visit patients at a Banner facility. But he can’t treat those patients’ medical emergencies.
Vaccines should always be voluntary and never be forced. But apparently, the City of Phoenix doesn’t care about freedom.
Last month, the city announced that its employees will have until January 18, 2022 to be fully vaccinated against COVID-19. And it doesn’t even matter if they work from home. The new policy lacks any sort of exemption for that because, of course, these mandates aren’t based on commonsense.
But don’t worry. Employees will receive $75 as a “thanks” for their compliance. And with rampant inflation and rising oil prices, that should cover at least one tank of gas. Maybe.
The city claims that its simply following President Biden’s vaccine mandate for federal contractors. But this just further shows how comfortable Phoenix is with such a blatant abuse of power.
Devastating. That’s how it felt earlier this week when the Arizona Supreme Court upheld the trial court’s ruling in Arizona School Boards Association v. State of Arizona. This decision strikes down critical reforms contained in a series of Budget Reconciliation Bills passed by lawmakers and signed by Governor Ducey earlier this year.
This past July, Arizona lawmakers and Governor Ducey did the right thing. Through a series of Budget Reconciliation Bills, they took important steps to protect the people of Arizona from more COVID mandates and to prevent children from being indoctrinated in public schools by Critical Race Theory.
While COVID was certainly an issue that warranted some action, it never should have included trampling on the rights of the people. And we definitely should not be wasting tax dollars on lessons that teach public school students that one race, ethnic group, or sex is in any way superior to another.
Not surprisingly, these laws sent teachers’ unions into a tailspin. As students headed back to campus, some Arizona schools decided to teach students that it’s ok to violate the law. And the Arizona Board of Regents recently announced that all three state universities will require their employees to be fully vaccinated against COVID-19 by December 8.
On Monday, Maricopa County Superior Court Judge Katherine Cooper ruled that many laws passed within the recent budget were unconstitutional. Cooper stated that the legislation violated the single subject rule of the Arizona Constitution. The case, Arizona School Boards Association Inc., et al., v. State of Arizona, et al. (CV2021-012741) had a total of 15 plaintiffs. In all, Cooper’s ruling impacted a variety of budget-related bills, or BRBs: HB2898, SB1824, SB1825, and struck down SB1819 in its entirety.
“Subject and title of bills[:] Section 13. Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such an act shall be void only as to so much thereof as shall not be embraced in the title.” (emphasis added)
In a copy of the opinion obtained by 12 News, Cooper asserted that Section 13 was made with the intent to prevent “logrolling”: inserting a multiplicity of subjects into one bill in order to push a vote through. The judge supported her claim with Arizona Supreme Court precedent. In explaining her decision to strike down all of SB1819, a sweeping bill that expanded voter registration, modified ballot security requirements, removed the secretary of state’s legal authority over election laws, established an election integrity fund, limited the length of public health emergencies, and created a special committee to audit the voter rolls, among other things.
“No matter how liberally one construes the concept of ‘subject’ for the single subject rule, the array of provisions are in no way related to nor connected with each other or to an identifiable ‘budget procedure.’ The bill is classic logrolling – a medley of special interests cobbled together to force a vote for all or none,” wrote Cooper. “In this case, the State’s view would allow the Legislature to re-define ‘budget reconciliation’ to mean anything it chooses. Going forward, the Legislature could add any policy or regulatory provision to a BRB, regardless of whether the measure was necessary to implement the budget, without notice to the public. The State’s idea of ‘subject’ is not and cannot be the law.” (emphasis added)
Cooper also asserted that the bills in question weren’t in compliance with the state constitution’s requirement that bill titles clearly reflect the content of the legislation.
In striking down the entirety of SB1819, Cooper explained that prior court decisions don’t allow for severability to salvage portions of the bill.
“When an act violates the single subject rule, the whole act fails,” stated Cooper.
Whereas for the other bills, Cooper explained that the certain provisions banning mask, vaccine, and testing mandates; critical race theory education; and vaccine passports weren’t reflected in the bill titles. Therefore, they were invalid.
As AZ Free News reported last week, the main plaintiff in the case, Arizona School Boards Association (ASBA), recently hosted a law conference where photos showed attendees maskless and not social distancing, though spokespersons informed us that masks were required. ASBA also told us they encouraged some attendees to take off masks momentarily and group together for pictures.
The mask mandate ban would’ve gone into effect on Wednesday.
Governor Doug Ducey’s spokesperson characterized the ruling as “judicial overreach.” The governor’s office promised that they would challenge the ruling.
“We are still reviewing the ruling, but this decision is clearly an example of judicial overreach. Arizona’s state government operates with three branches, and it’s the duty and authority of only the legislative branch to organize itself and to make laws,” stated Ducey’s spokesman. “Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government. Further action will be taken to challenge this ruling and ensure separation of powers is maintained.”