Follow Up Message From MEA Attorney Ann Smith Regarding the City’s Vaccine Mandate Policy

Dear MEA Members:

I hope this message finds you all doing reasonably well.  After MEA disseminated my e-mail message to you last Thursday 9/30 related to the City’s vaccine mandate, the City sent an Employee Notification which appeared to be at odds with what the City had previously communicated to MEA regarding the City’s revised deadline of December 1^st for all employees to be vaccinated or have an approved medical or religious exemption.

In its Employee Notification to you on 9/30, the City characterized December 1^st as a “goal” not a deadline.  The City’s communication to you also implied that the City is “meeting and conferring” with Recognized Employee Organizations over its decision to impose a vaccine mandate when, in fact, the City is only meeting and conferring regarding the impacts of its policy decision and not the decision itself.

As I noted in my message sent to you last week, the City’s position in this regard is consistent with current bargaining law in California’s public sector which recognizes an employer’s management right to impose a vaccine mandate as a condition of continued employment with no obligation to first bargain in good faith to impasse over the decision itself as opposed to its impacts.

However, because of these mixed messages from the City – as well as the lack of clarity from the City directly related to the subject of impacts, I sent a series of questions to the City at 3:29 p.m. last Friday, 10/1 and asked for complete answers by Wednesday, October 6^th so that MEA could provide an update to its membership.  Wednesday came and went with no answers from the City.

Thursday morning at 8:39 a.m., I wrote again to the City to emphasize the time sensitive nature of the issues, to grant a one-day “grace” period, and to ask for the answers by the end of the day Thursday, 10/7.  At 5:13 p.m. Thursday, the City emailed to say that the answers would be forthcoming “by close of business 10/8.”  We will, of course, give you an update next week assuming the answers arrive.

In the meantime, we thought it was important to share some of the critical (and still unanswered) questions MEA posed to the City on 10/1:

Category #1: Has the City in fact made a policy decision that being fully vaccinated will be a condition of continued employment on a date certain that requires compliance OR actual separation from City employment on that date for all who fail to comply?

1. A proposed internal communication to employees – while still under review after being sent to MEA for comment  – was disseminated to some City employees in error by at least one manager, sent to the press and then reported on in the UT.  But the frustration this error and media report caused was only exacerbated when the City sent an entirely different IC to employees (on 9/30)  – with no meaningful advance notice to MEA or opportunity to be heard regarding it.  This IC contradicted the prior proposed IC on which MEA’s input was sought.  Instead of confirming the Mayor and City Council’s firm commitment to this mandatory vaccination policy as originally announced, the City told employees that its “goal is for a mandatory COVID-19 Vaccination Policy to go into effect on Wednesday, December 1, 2021.”  Goal or deadline??? Then the City writes: “as the City continues the meet and confer process with its REOs.”  What??? The City has repeatedly emphasized that it is not meeting and conferring about its policy decision and MEA has confirmed to employees the legality of the City’s position in this regard.  Why would the City continue to assert that legal position but imply to the contrary – i.e., that it is meeting and conferring about the policy decision itself and, because it is, the 12/1/21 date is only now “a goal?”
2. Has the City actually made a policy decision to require full COVID-19 vaccination as a condition of continued employment which it intends to enforce on a uniform and definitive basis at any time?  No represented employee – whether vaccinated or not and whether supportive of a vaccination mandate or not — benefits from having the City play games with employees’ livelihoods.   If the City’s “goal” for full vaccination compliance – which is no longer a deadline – will just keep moving from one date to another until the City can declare that the public health crisis is sufficiently under control to withdraw the mandate, the City needs to say so.
   1. Is the City’s policy decision to require mandatory vaccinations by 12/1/21 or not?
   2. Does the City intend to provide (as the City has informally mentioned) non-compliant employees with another 30-day reprieve after any deadline is finally set during which they can still consider their “options” and take action before the City begins the termination process?
   3. Will the City require vaccination compliance at all or just keep moving the “deadline”? Will the City eventually just say “never mind” because infection rates have been lessened OR because the loss of too many unvaccinated employees will adversely impact public health and safety when it is clear that, in many instances, having an unvaccinated employee on the job (wearing a mask and subject to frequent testing) is still better than having no one on the job when needed?
   4. Will EVERY employee who remains non-compliant on the actual deadline be SEPARATED from City employment on the same day Citywide? What if the employee has an appeal pending on the denial of their exemption or accommodation?
   5. Does the City believe that it can lawfully impose this mandate as a condition of continued employment and then decide, on a discretionary basis, WHO to actually separate for non-compliance and when? Does the City believe that, despite imposing a Citywide mandate changing minimum eligibility requirements for all continued employment, it can then lawfully “separate” only who it wants — a few here, a few there — according to some internal set of priorities regarding staffing, critical services or other health and safety concerns beyond vaccinations which will impact existing employees or the public at large?

Category #2: MEA wants to know every detail about how this unilaterally-determined policy will be implemented — if it really will be as to those who fail to comply; for example, will the procedures be transparent and subject to scrutiny in order to guarantee consistency and uniformity of application Citywide to avoid impermissible discrimination or disparate impacts on bargaining units or particular job classifications or individual employees? How will MEA’s MOU be amended to guarantee representational rights related to the process – for example, if an exemption or reasonable accommodation is denied?

1. Who is going to review incoming exemptions?  The Department?  HR? Risk Management? A neutral third party?
2. As to your answer to (1): how many will be assigned to do it and who are they?
3. Who, if anyone, will review the decision before it is issued to the employee?
4. Who will hear and decide any employee “appeal” of the exemption determination?
5. Will a third party medical expert review and approve medical exemptions?  If so, how will this expert be selected?
6. Will the standards for approving an exemption be well-defined and uniformly applied across the City or will the City use this new policy mandate as a means to make selective cuts of employees the City doesn’t need as much as others or, on an individual basis, doesn’t like for some reason?
7. What are all the tools which will be in place – and subject to MEA’s review — to assure uniform administration of exemptions being granted and/or accommodations being implemented throughout every department and division in the City?
8. Will exemptions submitted to the City be made a matter of public record and disclosed, upon request, to the media or others or will these be treated as confidential personnel records?
9. For contract administration purposes, will the City provide MEA with a copy of all approved exemptions by job classification across all bargaining units?
10. Will denials of an exemption be grievable, subject to representational rights and appeal?
11. Will proffered accommodations be grievable, subject to representational rights and appeal?
12. Will an employee who fails to vaccinate or have an exemption approved be shown as “terminated” in the separation paperwork with no “right of re-hire” even if subsequently vaccinated? Will the City oppose such an employee’s unemployment claim on the basis that the employee allegedly engaged in “misconduct” as opposed to having failed to meet a new minimum qualification the employer imposed during employment?  What will the actual termination paperwork say? Will the employee have a Skelley hearing before separation or a right of appeal to the Civil Service Commission?

Category #3: MEA wants to know every detail of the City’s plan for actually implementing its alleged policy decision requiring mandatory vaccinations because implementation will affect the health and safety of employees left to provide critical services to the public without sufficient staffing.  The result will be mandatory overtime and/or greater stress and adverse impacts on the remaining employees regardless of their COVID vaccination status or exemption.

1. What is the City’s plan for adding staff now – considering that the average on-boarding timeline runs about 180 days?

We will provide an update as soon as reasonably possible after receiving the City’s answers to these questions.

Meanwhile, have a good weekend and stay well.

My best, Ann M. Smith