Update Message from MEA Attorney Ann M. Smith Re City’s Vaccine Mandate
Dear MEA Members:
To recap, my message to you on 9/30/21 covered the general issues of legality surrounding the City’s vaccine mandate. My next message to you on 10/8 summed up various questions which were posed to the City on behalf of MEA-represented employees after the City’s messaging became confusing – i.e., had a firm policy decision been made or not and, if it had been, was December 1st a real deadline or not. The City has now provided answers to those questions and, as promised on 10/8, MEA wants to share those answers with you.
#1: Has the City actually made a firm policy decision to require vaccination as a condition of continued employment and as a minimum requirement for new hires?
City’s Answer: Yes, it has. This decision will be enacted into law by the City Council by means of an Ordinance which is being drafted.
#2: Does the City continue to assert that this policy decision is firm and final and not subject to bargaining with MEA under the State’s collective bargaining law? For example, MEA asked if the City would meet and confer over the balancing of risks to the health and safety of the public and to all employees, including the vaccinated, if some employees remain unvaccinated but are masked and tested versus the health and safety risks if there are insufficient employees available to provide critical services to residents.
City’s Answer: The City will not bargain over the decision itself which is a decision within the City’s exclusive management rights and it is in fact a decision that has been made.
#3: What “options” will an employee be given if the 12/1/21 deadline arrives and the employee remains unvaccinated with no approved medical or religious exemption and accommodation?
City’s Answer: The City will issue the employee a 30-day “options letter” on 12/2/21 which will explain the employee’s options to be taken before termination proceedings begin on 1/2/22 as follows: (1) get fully vaccinated and provide proof; (2) request a medical or religious exemption; (3) request a special leave without pay; (4) retire if eligible; or (5) resign.
Note: This answer means that – at least as of today – the City’s de facto “real deadline” for getting fully vaccinated is January 2, 2022.
#4. What will the termination process look like on January 2, 2022?
City’s Answer: Any employee who refuses to vaccinate or who has been denied a reasonable accommodation based on a claim of medical or religious exemption will be given an Advance Notice of Termination which may be appealed to the Department and, if upheld, appealed thereafter to the Civil Service Commission.
Note: If the City Council enacts the Vaccine Mandate into law (as the City presently expects), there will be no discretionary grounds available for the Department or the Commission to reverse the termination.
So that is the current state of answers directly from the City as of today. However, as I wrote to you on 9/30/21, we have no means to predict whether the City will eventually amend or even withdraw this vaccine mandate policy. What we know now is that the City intends to enforce this mandate by enacting it into law to assure its applicability and enforceability in every City department and workplace – including those which are not under the Mayor’s executive authority. We will continue to provide updates as further details emerge from the limited meet and confer process that is being conducted over the “impacts” of the City’s unilateral policy decision.
My best to all,
Ann M. Smith, Esq.