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Gov. Ducey demands Tucson rescind COVID shot mandate for gov't employees

Az governor says new city policy violates state law, and that officials can't question vax accomodation requests

Arizona Gov. Doug Ducey demanded Wednesday that Tucson roll back a new policy requiring city employees to be vaccinated by December or face losing their jobs. The Republican argued that the city's policy violates state law, which requires the city to grant vaccination accommodation requests as they come, rather than evaluating an employee's sincerely held belief.

Mayor Regina Romero said Ducey is "playing politics" to "deflect from his utter failure" on COVID-19.

On Tuesday, the Tucson City Council voted 4-3 that city government employees who are not vaccinated by Dec. 1 could face termination.

In a letter released Wednesday, Ducey wrote that he wanted to "bring information" to the Council's attention about the new policy, passed during a study session meeting Tuesday. Ducey disagreed with an opinion from Tucson City Attorney Mike Rankin, who told city leaders that Tucson could enforce a vaccine requirement for city government workers despite the state Legislature's attempt to block such mandates.

Rankin wrote that Tucson leaders "can enforce the requirements described" in the city's ordinance, and can "established additional consequences and penalties for city employees who fail to come into compliance with the vaccination policy."

The state law that would "otherwise prohibit the city from requiring any person to be vaccinated against COVID-19 has been declared void and unenforceable by order of the Maricopa County Superior Court," Rankin wrote. "The appeal from this order is now pending in front of the Arizona Superior Court, with oral arguments scheduled for Nov. 2, 2021."

Ducey wrote that while Rankin was right about the pending litigation, he said that Rankin was wrong about the law, arguing that only two sections of the law were deemed tossed out when the court found that the package of bills in which they were included was an unconstitutional "log-rolling" maneuver, and that a third section remains in effect. That section tells employers that if an employee presents a sincerely held religious belief, practice, or observance that they cannot take the COVID-19 vaccine, they must provide a reasonable accommodation. That is, "unless the accommodation would pose an undue hardship and more than a minor cost" for the city.

In a post on Facebook, where Ducey made sure to include his letter to city officials, wrote that it is "unfathomable that after a year as tough as last, the Tucson City Council voted to fire unvaccinated city employees." 

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"The state Legislature has spoken on this issue — they want Arizonans and their sincerely held beliefs to be protected from overreaching mandates," he wrote. 

Ducey said that his office had informed city of Tucson leaders that "their policy is in conflict with the law and, as such, should be rescinded."

Romero was quick to respond.

"It is deeply unfortunate not just for Tucsonans, but all Arizonans that Gov. Ducey is more interested in playing politics with the vaccine than taking any action whatsoever to protect public health," said Tucson Mayor Regina Romero. "This is just another politically motivated attempt to micromanage Tucson and deflect from his utter failure to manage the COVID-19 pandemic."

As the legislative session drew to a close this summer, state lawmakers attached a series of bills to the must-pass budget, including a bill that blocked mask mandates and vaccination mandates at the state's public schools. This included Senate Bill 1824, which blocked so-called "vaccine passports" and kept "any city, town or county" from "establishing a COVID-19 vaccine passport," or requiring "any person to be vaccinated" against COVID-19, or requiring proof of vaccinations to enter a business.

SB 1824 was one of four laws challenged by coalition of state education groups. Just before the bill was set to get into effect, a Maricopa County judge ruled that the legislature violated the Arizona Constitution, which requires bills to address a single subject.

As the case wound through the courts, in August, Tucson leaders passed an ordinance requiring vaccinations, and then began to suspend employees who did not get vaccinated by August 24. While the lion's share of city's 4,000 workers have already been vaccinated, City Manager Mike Ortega said that around 300 had not gotten the shot.

Around 627 city workers—including 192 members of the fire department and 194 members of Tucson Police—have requested some accommodations. The city has approved around 50 percent of all applications, leaving just 289 workers who had their request denied.

Another 24 accommodation requests are still under review, according to data from the city.

Before the City Council's meeting, the Pima County Board of Supervisors voted Tuesday morning to require county employees who work with "vulnerable populations," including staff with the county jail and juvenile detention centers, to be vaccinated.

The vaccination requirements are part of a wider move among large public and private employers across the county.

On Friday, the state's three universities said they would require vaccinations by Dec. 8 based on a federal mandate, and the Defense Department has also required federal contractors to vaccinate employees—including Tucson heavyweights Raytheon and Honeywell.

Ducey wrote that based on the study session materials, "it is unclear if the Mayor and Council were made aware of this new legal requirement" that went into effect on Sept. 29.

And, he argued that Tucson Administrative Directive could violate state law because it tells employees they may request a religious accommodation, rather than the process relying on a simple notification that the city must follow.

"It only requires the employee to provide notice," Ducey said. "Unlike other laws in the employment context, this statute does not provide for an employer to question the employee's "sincerely held religious belief, practices or observances," prior to providing the accommodation from a COVID-19 vaccine. It merely requires notice to the employer."

"Finally, as it seems that the city has clearly provided some accommodations for religious and disability reasons, it is unclear how there would be any 'undue hardship' for others that provided notice," Ducey wrote.

Even as Ducey outlined the law, religious leaders have often described vaccinations as a duty, or requirement, or as Pope Francis called it "an act of love."

In a letter, Bishop Edward Wiesenburger, the head of the Catholic Diocese of Tucson, wrote that "while vaccinations in general are a matter of individual decision, in particular instances the moral good of the community is so compelling that it takes precedence over our personal preferences—such as in a pandemic."

Wiesenburger told local Catholic clergy not to grant religious exemptions against vaccination.

Similarly, the heads of the Greek Orthodox Archdiocese of America said "there is no exemption in the Orthodox Church for Her faithful from any vaccination for religious reasons."

A Pew Research study found that just five percent of worshipers who attended a church service in September said that leaders told them to avoid getting vaccinated, and that instead nearly 39 percent of people who told by church leaders to get the vaccine. Meanwhile, about 4 percent of people attending an evangelical church told Pew Research that church leaders told them not to get the vaccine. Overall, people told Pew that around 39 percent of leaders encouraged vaccinations, while around 54 percent have said little about them.

Ducey also included a not-so veiled threat in his letter, writing that "violation of state law" and "violation of an executive order issued under the authority of an emergency declaration carries a criminal penalty."

Ducey's letter is part of a long-running battle over vaccination requirements, as the Republican governor has often straddled policies intended to knock down the disease that has killed 20,721 people in the state—supporting a state-wide push for vaccinations including several 24/7 vaccination sites—while also sharply criticizing mandates for both vaccinations and masks.

Over the summer, at least 14 school districts revolted against the state's attempt to block mask mandates, putting them into place and arguing that while the state legislature attempted to make the new law's blocking such mandates retroactive, they couldn't be put into effect until Sept. 29.

Ducey responded by establishing two programs in August aimed squarely at the school districts that implemented mask mandates in spite of laws signed by Republican governor over the summer. The two programs were funded through the American Rescue Plan, a $1.9 trillion bill signed by President Joe Biden in March. Intended to mitigate the spread of COVID-19 with extended unemployment benefits and new stimulus payments to individuals, the plan earmarked nearly $350 billion to help states, counties, cities and tribal governments manage the coronavirus outbreak.

In August, Ducey announced a carrot-and-stick approach by using some of the funding to create a grant system that would punish schools that required masks on campus, while also unveiling a program to give parents up to $7,000 to leave districts that implemented mask mandates, attempted to quarantine students exposed to COVID-19, or were forced to close because of outbreaks.

On Oct. 6, the U.S. Treasury Department warned that he could not use federal funds intended to mitigate the spread of COVID-19 as leverage against school districts that implemented mask mandates. "Treasury requests that the state of Arizona provide a response describing how the state will remediate the issues identified with the two programs described above," wrote Deputy Secretary of the Treasury Adewale Adeyemo. "Failure to respond or remediate may result in administrative or other action," he added.

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This week, a political action committee launched a $10 million ad campaign against Ducey and other governors who back "anti-science" COVID-19 policies.

Both Ducey and Romero agreed on one thing: the vaccine is safe.

"The vaccine is safe, widely available, and effective," said Romero. "Please do your part to protect yourself and fellow community members by getting vaccinated."

Ducey called on all Arizonans to get the vaccine, writing: "It is the best way of keeping you and your loved ones safe."

However, he went further. "But the law is clear — vaccine mandates are NOT permitted in Arizona."

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Paul Ingram/TucsonSentinel.com

Ariz. Gov. Doug Ducey during a press conference in March at the University of Arizona's vaccination site.

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