Vaccine Mandate Update Message From Ann M. Smith and MEA — Meet and Confer Over Impacts Has Ended; What This Means For You
Dear MEA Members:
This message is an update to the information previously provided by MEA on September 30th, October 7th and October 22nd. As of this writing, the City has now fulfilled its limited obligations under State law to meet and confer with MEA over the impacts of its decision to require proof of full COVID-19 vaccinated status by December 1st as a condition of continued employment. (See below regarding de facto deadline of January 3, 2022 to be fully vaccinated before termination steps begin.)
As explained previously, the decision to impose this vaccine mandate was not subject to normal bargaining rules because California law recognizes the City’s “management right” to make this type of health and safety decision unilaterally – meaning there is no obligation to get the agreement of a recognized bargaining representative like MEA. The City’s limited obligation was to meet and confer over the impacts of its decision and, as explained below, the City has done so and this process has now been concluded.
For most MEA-represented employees who are fully vaccinated – well over 80% — the outcome of MEA’s impact bargaining will have no direct consequences. For those who remain unvaccinated, understanding the consequences of a decision not to comply (and the timing of those consequences) will be crucial and this update provides that detail – please see “IF YOU ARE NOT VACCINATED” section below!
The Vaccine Mandate Policy Is Now Final Despite MEA’s Request For The City To Reconsider It Due to Potential Staffing Impacts
MEA invoked its right during the limited “impact” meet and confer to challenge the City regarding the operational impacts which may occur if a substantial number of employees separate from City employment as a consequence of the vaccine mandate – and how these losses might worsen staffing shortages in many critical City functions. MEA emphasized that this outcome would produce other health and safety consequences for all employees (including those who are vaccinated) and for the public who depend on adequate staffing to provide vital services.
On this basis, MEA urged the City to reconsider the announced Vaccine Mandate Policy using a broader health and safety analysis beyond COVID-19 and consider how the health and safety of employees and the public would be adversely affected if City staffing levels are further strained. MEA suggested that the alternative approach of mask-wearing and weekly testing of unvaccinated employees might be an appropriate alternative under all the relevant circumstances – even though it is understood that testing is a less effective alternative to being vaccinated. MEA put its position on this staffing impact issue in writing in some detail on October 21st so that all City decision-makers including the Mayor and City Council — and not just those City Negotiating Team members who participate in our face-to-face meet and confer process — would have direct access to the points MEA had identified.
With MEA’s written concerns in hand, on October 26, 2021, the Mayor and City Council met in closed session to receive an update on the meet and confer process between the City and its six recognized employee organizations.
The result of that closed session was the City’s confirmation that its vaccine mandate announced in late August 2021 will remain unchanged because the Mayor and City Council believe that the only effective path forward out of this pandemic and its devastating effects on people’s lives and the economy is by having a fully-vaccinated population and they intend to lead by example on this issue with respect to City employment. The City acknowledged its obligation to engage in further meet and confer with MEA if there are staffing and service level impacts once the Vaccine Mandate Policy is fully implemented and terminations are taking place.
With this confirmation by the Mayor and City Council that the City’s decision to impose a vaccine mandate remains unchanged, direction was given to the City Negotiating Team to address other concerns MEA had raised related to how the Vaccine Mandate Policy would be implemented and how an equitable, consistent and transparent process could be assured. The City has engaged in further meet and confer to address all of these issues and the meet and confer process has now ended with the City having fulfilled its obligations under State law.
The City intends to enact an emergency Ordinance on November 29, 2021, which establishes this Vaccine Mandate Policy as local law applicable to all Boards, Commissions, Elected Officials, Volunteers, New Hires, current City employees, and City contractors (see next section). This Ordinance will become effective the same day. As noted, the Mayor and City Council have repeatedly made clear their intentions on this Mandate, which makes the City Council’s adoption of its emergency Ordinance on November 29, 2021 essentially a foregone conclusion. If somehow something changes with respect to that timing or anything else, we will update you immediately.
The Same Vaccine Mandate Will Apply To City Contractors
The City Council agreed with MEA’s concern that it would be unfair to impose this Vaccine Mandate Policy on current City employees while ignoring City Contractors who work alongside them in City facilities or who are doing MEA’s bargaining unit work because of the City’s lack of staffing capacity. The City has now assured MEA that the Ordinance it will adopt on November 29, 2021, to enact this Vaccine Mandate Policy into law, will apply to all City contractors who interact in person with City employees while providing contracted services indoors in City facilities or while performing bargaining unit work as specified in the Policy, to be fully-vaccinated against COVID-19, effective January 3, 2022, as a condition for provision or continued provision of contracted services. [The January 3rd deadline coincides with the City’s de facto deadline for current employees as explained below.]
As to MEA’s bargaining unit work, the Vaccine Mandate Policy will apply to all City contractors while performing bargaining unit work in any indoor location or while performing engineering, surveying or other bargaining unit work identified on the Project List in any indoor or outdoor location. The City has agreed to a Verification Process so that MEA has an acceptable means to receive information and updates from the City regarding contractor compliance.
The City Will Implement This Vaccine Mandate In A Manner Which Is Equitable, Consistent and Transparent Across the City Regardless of an Employee’s Represented or Unrepresented Status and Regardless of Their Job Classification, Department or Bargaining Group
An employee who is unvaccinated may submit a written request for a medical or religious exemption. This process has been open to City employees since November 1st and will remain open until November 30th. (See below re additional opportunity during “options letter” period.) The City will evaluate these requests in accordance with State and Federal Law and the particular guidance issued by both the State Department of Fair Employment and Housing (DFEH) and the Federal Equal Employment Opportunity Commission (EEOC). Under the law, being granted an exemption does not guarantee that a reasonable accommodation will be available or that any reasonable accommodation the employer identifies will be the one the employee prefers. Each request will be evaluated on a case-by-case basis, with the standard for the accommodation of a religious exemption being the City’s determination whether providing a reasonable accommodation will cause undue hardship to the City. The City will do everything it can to ensure that no employee or job classification (represented or unrepresented), bargaining units or departments will be given special or disparate treatment throughout the reasonable accommodation process.
The City has agreed to provide MEA with regular updated information regarding all exemption requests made across the City in all job classifications (including unrepresented employees and all other bargaining groups), as well as regular updates regarding exemptions granted and reasonable accommodations approved. In this manner, MEA will closely monitor whether the City is, in fact, honoring its assurances that the process will be equitable, consistent and transparent.
IF YOU ARE NOT VACCINATED: The De Facto Deadline for Vaccine Compliance Is January 3rd Or Soon Thereafter Based On Customary Due Process Procedures
If an employee is not in compliance with the City’s Vaccine Mandate Policy as of close of business on December 1, 2021, then on December 2, 2021, they will be issued a 30-Day Options Letter. The City accepted MEA’s suggestions for improving how these options were explained. Employees in this category will remain in paid status and should continue to report to work during this process.
The employee will have until close of business on January 3, 2022, to select an option for compliance: (1) get vaccinated; (2) apply for an exemption; (3) request a Special Leave Without Pay for department and Civil Service Commission action and be off active duty by January 3, 2022; (4) retire by a date certain; or (5) resign by January 3, 2022.
If the employee does not select one of these options, on January 4, 2022, the City will move forward with the termination process for non-compliance – this means being served with an Advance Notice of Termination (ANOT) followed by a Notice of Termination.
The City accepted MEA’s recommendation during impact meet and confer that, if an employee who receives an ANOT appears at their “Skelly” (appeal) hearing with proof of being fully vaccinated as defined by the City’s policy, the ANOT will be destroyed and no further action will be taken. The City also accepted MEA’s recommendation that, if an employee appears at their “Skelly” hearing with proof of progress toward compliance, i.e., at least one shot of a two-shot vaccine or the one-shot vaccine, the ANOT will be held in abeyance until the employee completes the second shot, if applicable, and the two-week waiting period for full efficacy. The employee will continue to work in paid status during this period while following all masking protocols. Once the employee is in fully vaccinated status as defined in the City’s policy, the ANOT will be destroyed. If the employee fails to achieve fully vaccinated status within the specified time frames associated with the particular vaccine, the City will proceed with termination.
Separation Paperwork and Eligibility for Rehire
A non-compliant employee’s separation paperwork will state either that (1) the employee’s termination was due to a failure to obey the City’s lawful Ordinance requiring compliance with the City’s COVID-19 Vaccine Mandate which is cause for removal under Civil Service Rule XI, Section 3(d); or (2) that the employee had a qualifying exemption but no reasonable accommodation was available, and, in either case, the employee will be eligible for re-hire upon subsequent compliance with the vaccine mandate or after the mandate has been rescinded if the employee is otherwise qualified. However, when an employee is issued an Advance Notice of Termination/Notice of Termination due to noncompliance with the Vaccine Mandate Policy, any misconduct or poor performance which is documented in the employee’s personnel file may be reflected in the termination paperwork in a manner consistent with City’s longstanding past practice.
Eligibility for Unemployment Benefits Is Determined By the State’s EDD
If an employee voluntarily resigns from City employment in response to the City’s 30-day Options Letter, their right to receive unemployment insurance benefits under California law will be determined by the State’s Employment Development Department (EDD) based on a determination of “good cause” for leaving their job. If the employee states the reason for resignation is the City’s Vaccine Mandate Policy then the City will confirm this fact to the EDD.
If an employee has applied for and been granted a medical or religious exemption but no reasonable accommodation is available, the City will report this fact to the EDD.
If an employee remains non-compliant at the end of the 30-day Options period and is terminated from City employment, the City’s Separation Reporting Form will confirm that the employee’s termination was due to a failure to obey the City’s lawful Ordinance requiring compliance with the City’s COVID-19 Vaccine Mandate which is cause for removal under Civil Service Rule XI, Section 3(d). It will be the role of the EDD to determine the employee’s eligibility to receive unemployment insurance benefits based on this and any other relevant facts. The City will identify to EDD that an employee’s termination was due to failure to obey the City’s lawful Ordinance requiring compliance with the City’s COVID-19 Vaccination Mandate.
Do Non-Compliant Employees Have Other Legal Options? [This Is Not Intended to Be Legal Advice.]
Legal challenges to employer COVID-19 Vaccine Mandates have been filed and heard across the country. To date, no court has enjoined these mandates because long-standing and established law, including from the United States Supreme Court, supports the legality of these mandates. A common legal theme has emerged from these COVID-19 Vaccine Mandate cases which is to note that, under these mandates, no one is ultimately being compelled to get vaccinated. The issue is whether those who decline can compel their employer to continue to employ them despite their refusal. As every court has emphasized, there is no constitutional right to be employed in a particular job with a particular employer. For this reason, a non-compliant employee cannot compel their employer to employ them despite their non-compliance and termination is a lawful outcome.
If an unvaccinated employee is denied an exemption or an accommodation, this denial may give rise to a legal claim. An affected employee who believes the City has wrongfully denied an exemption request or refused an accommodation should promptly consult competent, experienced counsel to discuss the facts and to identify whether there is a solid basis for legal action, what it would cost the employee to pursue legal action, and how long it might take for any resolution (win or lose) to be achieved. Be very cautious about requests to deposit your hard-earned money with any attorney until and unless you are persuaded that the attorney has actual experience in this area of the law and a solid factual basis and legal theory to justify filing a claim on your behalf.
Many of you will be pleased by the outcome of this limited impact meet and confer process because you are vaccinated and support the City’s Vaccine Mandate Policy — now also extended to contractors.
For those of you who remain unvaccinated, you will likely be disappointed that the City remains resolute in its decision to implement this Policy. The outcome, however, is now known and the process to implement the City’s Policy is clear. There is no lingering uncertainty in the matter and it is time for each unvaccinated employee to make the best decision for themselves.
As always, MEA will welcome any questions you have and will continue to do its very best to advocate for equity, consistency and transparency throughout the implementation of the City’s Vaccine Mandate Policy.
My best to all,
Ann M. Smith, Esq.