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Tucson backs off employee vaccine requirement after Arizona AG deems it illegal

The City Council’s requirement violates state law and an executive order from Governor Doug Ducey, according to Brnovich

The city of Tucson on Tuesday paused a policy of requiring employees to be vaccinated against COVID-19 after the state attorney general said the mandate was illegal.

"I believe that the city vaccine policy is an important and necessary step to protect our staff and the community," said City Manager Michael Ortega. "Until we have a better understanding of our legal position in relation to today's report, I have instructed staff to pause on the implementation of the policy."

In a report released earlier in the day, Arizona Attorney General Mark Brnovich said the city vaccine requirement violates state law and an executive order from Governor Doug Ducey, and if the city doesn't rescind it, "million of dollars" in state funding could be withheld.

“Tucson’s vaccine mandate is illegal, and the city could be held liable for attempting to force employees to take it against their beliefs,” Brnovich said.

If the city doesn’t change the mandate within 30 days, the Attorney General’s Office will notify the state treasurer, who will withhold the city’s portion of state-shared revenue, the statement said.

The finding comes after a 30-day investigation sparked by a state lawmaker’s request.

This year, the Republican-controlled Legislature passed a law forbidding local vaccine mandates, but Tucson’s all-Democrat City Council, which has butted heads with Ducey before over pandemic responses, went ahead with a mandate.

On Aug. 13, the city gave employees until Aug. 24 to show proof of at least one vaccine dose or face a five-day suspension. Brnovich called the deadline “exploiting a loophole,” because the state law banning such a mandate doesn’t take effect until Sept. 29.

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The mandate also violates Ducey’s August executive order against such mandates — an order issued after the city’s mandate and backdated to cover any city action since June 30, Brnovich said.

It’s not the first time Tucson butted heads with the state during the pandemic.

Last year, when a Ducey executive order banned mask mandates, the Tucson council mandated them anyway. Ducey later rescinded his ban.

Then in March, when the governor again banned local governments from mandating masks, Tucson’s mayor and City Council pushed back against what Mayor Regina Romero called a premature step. The city kept a mask mandate in place.

“Here in Tucson, we will continue to follow the science and advice of our public health experts,” the Democratic mayor said then in a statement.

In May, the city lifted the mask mandate, and on July 28, with COVID-19 again on the rise in Arizona, the city began requiring masks in city buildings and on public transportation. There is no mandate for masks in private businesses.

Within days of the passage of the employee vaccine requirement, the Tucson Police Officers Association, the police union, sued to block it. The unilaterally decided requirement is a violation of the city’s collective bargaining agreement and a violation of the city code, the association argued.

A superior court judge declined to block the mandate.

Pima County, where the vast majority of residents live in the Tucson metro area, is a high COVID-19 transmission area according to the county health department’s latest update Aug. 27.

In the week ending Aug. 14, the county had 145 new cases per 100,000 people, a three-fold increase over three weeks, the health department said. The resurgence of COVID-19 is straining hospitals. Intensive care and medical/surgical hospital bed availability is limited, and staffing issues further complicate the situation.

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“Area hospitals, across the board, have severe nursing workforce shortages due to high rates of turnover and burnout from the pandemic. Local hospitals are being forced to rely on traveling nursing staff to ensure adequate clinical services,” according to the health department.

Tucson Mayor Regina Romero attributed Brnovich's report to his recently announced candidacy to unseat U.S. Senator Mark Kelly, who is up for reelection next year.

"It is deeply unfortunate, but not surprising, that the attorney general is prioritizing his political ambitions over his responsibility to objectively interpret the law," Romera said.

"This report reads more as a campaign speech filled with political commentary rather than a fact-based opinion."

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Romero at a June 2020 press conference.

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