Important MEA Update on Vaccine Mandate Meet and Confer
As you know, MEA’s meet and confer efforts with the City over its announced vaccine mandate policy have been in progress for several weeks. Update messages were sent to you on 9/30, 10/8 and 10/12. We met again with the City Negotiating Team on Monday and Wednesday this week.
In anticipation of the Mayor’s Negotiating Team giving an update in closed session to the City Council on Tuesday, 10/26, the City asked for a written position from MEA on the pending issues. The following e-mail from MEA’s labor counsel Ann M. Smith to the City Team states that position . Please take the time to read it. Whether you are vaccinated or unvaccinated, this issue affects all of us.
The meet and confer process has NOT ended and we will likely learn from the City next week whether and to what extent the City may alter any aspect of its vaccine mandate policy decision or not.
We are also informed that the City intends to send out its next Employee Communication related to this vaccine mandate sometime next week and that this will include an explanation regarding the available medical or “sincerely-held religious belief” exemption process, the forms to be used, and the timeline for employees to submit the completed forms for review and action by City’s HR Department.
We will keep you updated regarding further developments in the meet and confer process as they occur.
EMAIL SENT TO THE CITY’S NEGOTIATING TEAM BY MEA TODAY:
Dear City Team:
This communication will serve to summarize MEA’s view of the issues which remain unresolved in the on-going meet and confer process related to the City’s announced decision to implement a COVID-19 vaccine mandate for (1) all new hires and (2) as a condition of continuing employment for all current employees.
The City’s decision to require proof of fully-vaccinated COVID-19 status for all new hires is not in dispute. The City may lawfully set the minimum requirements for any candidate of employment and the City’s decision in this regard is outside the scope of bargaining under the MMBA.
The Policy Decision Itself Is Outside the Scope of Bargaining
The City has announced its unilateral decision to require existing employees to be fully vaccinated against COVID-19 or otherwise present a qualifying medical or religious exemption as a condition of continued employment. The City’s position is that it has an unfettered management right to impose this policy decision without first bargaining in good faith to impasse over the decision itself. The City agrees, however, that its duty under the State’s MMBA is to meet and confer in good faith over the impacts and effects this policy decision will have on employer-employee relations and on terms and conditions of employment.
But Not So Fast . . . City’s Duty to Bargain Over Impacts Includes Its Duty to Bargain Over An Alternative to the Decision
MEA has cautioned the City that, under the MMBA, a recognized employee organization’s lawful right to bargain over impacts involves the right to question whether there is an alternative to the employer’s decision which should be considered because of the impacts being bargained about. Here is what PERB wrote in its Sonoma County DSA Decision No. 2772-M on June 23, 2021: “Notably, while an employer need not negotiate over a decision that is outside the scope of representation, it must meet and confer over any alternatives to the decision as part of effects bargaining. (citations omitted.) Effects bargaining thus contemplates that negotiations may ultimately cause the employer to change its mind about the non-negotiable decision in some way.”
There Are Impacts For ALL Employees – Those Who Comply and Those Who Don’t – Because the City’s Staffing Shortage Is Already Critical and It Takes An Average of 180 Days to On-Board New Employees
First, the impacts for those who fail to comply with the mandate by getting vaccinated or by asserting a qualified exemption are undeniably substantial. Regardless of their longevity of public service or the quality of their performance – and regardless too of the fact that many risked their lives to continue to provide public services during the pandemic when no vaccines were available to protect anyone – the City’s position before 10/20/21 was that these vaccine non-compliant employees would be recorded as guilty of misconduct, terminated from employment with a complete loss of their wages and benefits, and “not eligible for re-hire.”
[Note: In our meeting yesterday (10/20), in response to MEA’s strenuous objections to these outcomes, the City announced that it would not be doing this and that these employees will be noted as terminated for non-compliance with the vaccine mandate and they will be eligible for rehire if they get vaccinated or if the vaccine mandate is rescinded.]
Second, the fully vaccinated employees left behind will face the stresses and strains of trying to provide vital public services with even fewer staff. There are currently well in excess of 800 vacancies in budgeted MEA-represented job classifications and the average length of time to on-board new employees is currently 180 days. Mandatory overtime will necessarily be imposed in the 24/7 safety-related services and, even then, short staffing will take a toll on the employees who hold themselves to a very high standard in trying to serve the public’s emergency needs. What service level cuts will be acceptable in 911 and Fire Dispatch? What will the new wait time be for an emergency call to be answered by a dispatcher doing their very best work under the circumstances? What about impacts on service levels in the delivery of safe drinking water or in meeting goals in the Pure Water program? How will Library and Rec Center hours, reliable trash pick-up, infrastructure projects, or dozens of other critical City functions affecting the public’s health and safety beyond COVID be impacted by further staff reductions associated with a vaccine mandate when they are already strained by understaffing? Undoubtedly, the City’s repeated urgent requests for MEA to consider contracting out of bargaining unit work will only increase – and there is presently no requirement for contract employees to be vaccinated! This is an untenable outcome.
Meet and Confer To Date
The issue confronting the City — and implicating MEA’s important advocacy role as a recognized employee organization — is how to do the most good in accomplishing our common societal goal of defeating this virus, saving lives and restoring normalcy to everyday life. MEA is not debating or denying science; nor is MEA disagreeing with the City’s determination that being vaccinated is the best protection against serious illness from COVID-19 and the on-going Delta variant which might lead to hospitalization, ICU level of care and even death, and that a fully-vaccinated community will help all of us move past the continuing threats from COVID’s future and further variants that otherwise threaten the public health. Nor is MEA questioning the sincerity of the executive and legislative determination that requiring all employees to be fully vaccinated will serve the goal of providing a safe and healthy workplace for all employees and a measure of protection when City employees come in contact with members of the public while providing City services. MEA agrees that we are not fighting each other or the government – we are fighting a virus with a single objective to survive and do harm by infecting human hosts.
However, the reasons for vaccine reluctance or opposition are varied and often fall on the deaf ears of those who are vaccinated and believe strongly in the need for all to be vaccinated as a matter of civic duty; likewise, the words of the vaccinated in support of a mandate often fall on the deaf ears of those who are fearful, reluctant or even boisterous in their opposition. Regardless of vaccination status, MEA-represented employees are all dedicated public servants who devote their working lives to serving the public – some were able to do it from the safety of their homes at the height of the pandemic; others remained on the front lines. The City made its decision to impose a vaccine mandate and a number of employees have become fully vaccinated as a result. But the meet and confer process is designed to promote communication and a full exchange of ideas. MEA takes its representational responsibility very seriously on behalf of those in its bargaining units who are already fully vaccinated (over 80%) and on behalf of those who aren’t.
MEA notes that, as of our meeting yesterday 10/20/21, the City’s position on key issues continues to evolve in response to the meet and confer process which is precisely its purpose. Indeed, the City stated yesterday that it acknowledges the need for further concrete actions on various issues identified below. Accordingly, MEA’s position will be guided by what concrete further steps the City takes to address all of the concerns MEA has expressed regarding this announced policy determination and its implementation. Given the progress being made as recently as yesterday, it is highly doubtful that the parties are yet at a “good faith impasse” if ever they get to one.
MEA’s persistent concerns which the City has not yet addressed to MEA’s satisfaction:
- The objective of protecting the health and safety of employees and the public will not be served by a fully vaccinated but understaffed City workforce – and this vaccine mandate will likely do more harm than good when the bigger “health and safety” picture is considered.
The stated policy objective underpinning the vaccine mandate is to improve workplace health and safety for the protection of City employees and to protect the public when receiving vital City services. But if the City’s vaccinated employees are left with unsupportable workloads, will the stress and strain of this situation be worse
for them and the public they serve than having unvaccinated colleagues on the job wearing masks and being subjected to regular testing? If the public needs vital services, is it better to get service from an unvaccinated employee wearing a mask and subject to regular testing or no service at all? Would a member of the public facing an emergency really care if a 911 or fire dispatcher is vaccinated or not as long as a life-saving voice promptly answers the call? Has the City weighed the cost impacts of enduring job vacancies while waiting to on-board and train a vaccinated new hire against the cost of testing a fully-trained employee already on the job for the next 6 months? What service cuts have been planned for and approved by the City Council?
- The City’s approach is inconsistent and unfair because nothing is being asked of the public being served or of the contractors taking MEA jobs.
If the City believes that a vaccine mandate is necessary to protect City workplaces and the public being served, why isn’t the City requiring members of the public to show proof of vaccinated status in order to enter City buildings where employees work and other members of the public are present – all of whom face risk of exposure? If employees must vaccinate in order to keep their jobs serving the public, why isn’t the City requiring this reciprocity from the public who seek to be served? Why doesn’t the City take this step first rather than sending the unintended (?) message to its workforce that they are the “low hanging fruit” because actions taken in the interest of health and safety which impose on the public directly would be politically unpopular or provoke backlash?
And, in the same vein, why isn’t the City requiring all outside contractors doing business with or on behalf of the City to be fully vaccinated if their duties involve contact with City employees or members of the public? Why should the City expect MEA to consider requests for contracting out of MEA’s bargaining unit work to private sector contractors who have no vaccine mandate?
If employee health and safety is indeed paramount, why is the City invoking alleged “business needs” to justify a directive that employees who have been telecommuting return to the workplace now when the City’s vaccine mandate has not been implemented to provide a safer workplace?
- The City has made no City-specific business disruption case for this mandate at this time.
When asked to provide data to show why there is an emergency need for this mandate to be enacted into law now, the City has yet to do so. As of 10/20/21, the City’s HR department still has no data from the safety departments re new COVID cases since September 1st 2021 to the present and the data HR does have documents only a handful of COVID cases within the City’s workforce since September 1st – and, at that, the City could not tell MEA on 10/18 or on 10/20/21 how many of these may be so-called “breakthrough” cases among vaccinated employees versus the unvaccinated; nor could the City tell MEA how many of these cases actually resulted in lost work time in recent weeks since County-wide vaccination rates have increased and positivity rates/hospitalizations, etc. have decreased. The City has made an insufficient case related to ongoing community spread, hospitalizations or ICU bed occupancy to show that there is any current compelling short-term need to impose this mandate now or over the next few months when terminations will begin.
Requiring full vaccination may indeed be the best public health outcome but is it the best policy for this City as an employer when the City is already strained to provide vital services affecting public health and safety more broadly?
- The City aspires to implement this mandate as to all employees — represented and unrepresented — in a manner that is equitable, consistent and transparent but the City is not structured to deliver on this intention and this mandate will cause more disruption, mischief, and anger.
MEA continues to await data which will shed further light on the City’s performance on the first “equity test” related to this mandate – reacting to employee failure to report their status in SAP by 9/27. But if past is prelude, MEA’s experience has been that there are vast differences in discipline for similar conduct between and among various departments even within MEA’s own bargaining units – let alone by reference to other bargaining groups. Applying its decades of actual representational experience to the situation at hand, MEA is fully aware of open and stated resistance to this mandate by many in management. The City’s HR function is within the Mayor’s executive authority but not all departments are under Mayoral control. And HR itself has no independent power to administer discipline. All discipline – whether to impose it; what it should be; how long the appeal process takes — is within the exclusive control of individual City departments.
The City has explained that there will be a dedicated group of HR employees who will review and act on requests for medical or religious exemptions from the vaccine mandate. But those granted – under the very liberal standards the City has already acknowledged – will be provided with reasonable accommodations determined by departments. There is noauthorizing legislation or A.R. which delegates exclusive authority for determining reasonable accommodations to HR under the Mayor’s control. What this means is that the preferred reasonable accommodation of masking and testing will predictably be granted in those departments where staffing needs require leniency in order to keep employees on the job. Inequities in outcome will only provoke further disruption, anger and bitterness.
It is also true that the City intends to accept any “sincerely held belief” (religious, moral or ethical) asserted by an individual employee even if it involves a “religion of one.” The City believes that this is the law – and it has been suggested by some City officials that any and every exemption will be granted for the asking. But employees will not officially be told this. Moreover, while the City may officially state “on paper” that lying about such a belief as the reason for non-compliance with the mandate will not be tolerated, it is unlikely that the City will have the inclination – let alone the time, resources or means to “discover” or “prove” the lie — and, in reality, the City will be litigation risk-adverse and let it go. However, employees who don’t see the “wink or the nod” and/or are unwilling to “lie” about having a “religious belief” that prevents vaccination as opposed to a sincerely-held safety concern or other fear will be terminated.
Bottom line: it is guaranteed that, notwithstanding the best intentions of policymakers, this vaccine mandate will result in disparate impacts: employees in certain job classifications/bargaining units or departments will get a better result – their exemption will be granted and their preferred reasonable accommodation of masking and testing will be readily granted or, if they didn’t even apply for an exemption, they will be on the payroll longer due to sloooow departmental appeal proceedings; other employees whose job classifications are less high profile or better staffed will be gone by mid-January; management’s “favorite” and “least favorite” employees will also get different results. The anger, resentment and bitterness will fester and grow and no one will be any healthier or safer on the job.
MEA will continue its good faith meet and confer process with the City. However, MEA puts these questions to the Mayor and Council:
#1: Under all the circumstances identified above, why isn’t the alternative policy decision of requiring masking and twice-weekly testing of all unvaccinated employees an adequate response to the current state of the pandemic and its effects on the City’s workforce and the community at large?
#2: If the answer is that only a vaccine mandate will achieve the City’s stated goals, why isn’t the City acting on a uniform basis by imposing a vaccine mandate on all contractors and their employees who are doing business with and for the City, and by requiring the same measure of reciprocity from the public in protecting employee health and safety when entering City facilities or seeking non-emergency City services?
Thank you for your careful attention to the details of MEA’s position and the reasons for it. We look forward to a continuing productive meet and confer process.
My best to all,
Ann M. Smith, Esq.