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Brnovich sues Tucson over last year's COVID shot requirement for city employees

Brnovich sues Tucson over last year's COVID shot requirement for city employees

Local officials point to accomodations for disabilities & religious beliefs in 2021 vaccination policy for municipal workers

  • Emily Sacia/Cronkite News

Arizona Attorney General Mark Brnovich has sued the city of Tucson over a 2021 policy that mandated COVID-19 vaccinations for municipal government employees, alleging civil rights violations. The suit, filed Tuesday, claims the city violated state law and discriminated against employees who requested religious accommodations or disability-based medical exemptions to the shot requirement.

The Civil Rights Division of Brnovich's office claims Tucson discriminated against employees based on religion or disability and retaliated against city staffers who engaged in protected activity under the Arizona Civil Rights Act.

"Tucson dictated a widespread vaccine mandate without regard to its impact on the liberties and civil rights of its employees," Brnovich said in a press release sent out around noon on Tuesday. "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."

"The lawsuit has not yet been served on the city," Tucson City Attorney Mike Rankin said late Tuesday afternoon, noting that according to the press release, it was filed in Maricopa County Superior Court.

"As is its practice, the city will not comment on the merits, or the lack of merits, of pending litigation," Rankin told the Sentinel.

According to the attorney general's press release, Rankin said, "the lawsuit contends that the city's vaccination policies that were adopted in August 2021 amounted to discrimination and/or retaliation against employees based upon disability and/or religion, despite the policies' express provisions allowing for accommodations for sincerely held religious beliefs or for a disability; and allowing for medical exemptions."

On August 13, 2021, Tucson implemented a COVID-19 vaccination directive, requiring employees to be vaccinated against COVID-19 or submit a request for religious or disability accommodation or a medical exemption. That policy was set to go into force if three-quarters of the 1,000 city workers who were not yet vaccinated did not get their shots by August 24 of last year.

According to the attorney general's complaint, Tucson gave its employees three business days from implementation of the directive to get vaccinated or to submit an exemption or accommodation request, disciplining employees who missed that Aug. 24, 2021, deadline.

Around 50 employees failed to give the city a form showing they were vaccinated, City Manager Mike Ortega said last year, while another 180 had their accommodation or exemption requests denied. Those employees had until Oct. 5 to submit proof that had gotten vaccinated against the pandemic disease.

The city temporarily stopped enforcing the mandate in early September 2021 after Brnovich argued that it was in violation of a state law that blocks local governments from requiring vaccines.

However, on Sept. 29, 2021, a Maricopa County Superior Court judge tossed out the law, ruling that state legislators violated the Arizona Constitution when they rolled several new unrelated laws into the must-pass budget bill.

Brnovich's lawsuit states Tucson extended the deadline for all employees, yet employees who missed the first deadline were nonetheless still subject to an unpaid suspension, regardless of whether their accommodation or exemption requests were pending or approved. The city issued 40-hour or 60-hour unpaid suspension to employees, most of whom worked for Tucson’s fire and police departments.

The Tucson City Council voted 4-3 on Oct. 19, 2021, that city employees who were not vaccinated by Dec. 1 would face termination, a process over several days that could lead to their ultimate termination by Dec. 17, beginning with a notice of intent to terminate by Dec. 3 — two days after the deadline.  

The claim also states incentives used by the city, including floating holidays, COVID-19 related pandemic leave, travel for career-enhancement opportunities for vaccinated employees were "adverse, retaliatory actions" for refusing the vaccine.

On Nov. 29, 2021, the city moved to terminate 86 employees who failed to comply with the COVID-19 vaccine requirement by the deadline, including 22 firefighters, 30 policemen and three employees in 911 dispatch, nine in Tucson Water and four in Housing and Community Development, among others. 

On Dec. 2, 2021, the city moved to fire 39 Tucson city workers for not complying with the mandate, including 11 permanent employees who had still refused to get COVID-19 vaccinations or couldn’t come up with a medical exemption or religious accommodation, and another 28 temporary workers who would no longer be eligible to be on the city payroll because they also failed to comply with the mandate.

On Jan. 10, 2022, Pima County terminated 56 employees who refused to get vaccinated against COVID-19. The county is not named in the lawsuit.

Brnovich, a Republican, lost in the GOP primary for U.S. Senate earlier this month, and his term in state office will end this year.

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