PHOENIX — Tucson is no longer in danger of being financially penalized for its COVID vaccine mandate for city employees.
State Sen. Vince Leach, R-Tucson, has withdrawn his request that Attorney General Mark Brnovich investigate whether part of Tucson’s policy of requiring all employees of the city to be inoculated runs counter to state law.
The move most immediately means Tucson avoids the threat of having Brnovich order the state treasurer to withhold more than $100 million in state revenue sharing money.
But Leach told Capitol Media Services the underlying issue is far from over. Other pending federal litigation over vaccine mandates overshadows his specific complaint, he said, about the city’s refusal to grant automatic religious exemptions to any worker who seeks one.
Leach isn’t the only one who apparently has given up on forcing Tucson to alter its policies. An aide to Gov. Doug Ducey said there has been no follow-up to a complaint sent to the city last month by Anni Foster, the governor’s legal counsel, warning Tucson that its mandate runs afoul of a new state law that took effect on Sept. 29.
That means the city can keep the mandate without fear of financial penalty and need not alter how it deals with requests for religious exemptions.
The City Council decided in August to require city government’s more than 4,000 workers to be vaccinated.
Tucson postponed enforcement in September after Brnovich said it would violate the new state law banning vaccine mandates by government agencies.
Since then, however, Maricopa County Superior Court Judge Katherine Cooper voided that law, ruling it, and some others, was illegally enacted. That decision was upheld by the Arizona Supreme Court.
But not overturned, and not considered by the courts, was a provision that says all employers “shall provide a reasonable accommodation” when a worker seeks an exemption based on a claim of a “sincerely held religious belief.”
Foster, in her letter to Tucson, said the city’s policy says an employee may “request” a religious accommodation, and that that there will be an “interactive process” to “determine precise limitations.” She contends the law doesn’t give the city that choice.
Leach then used that letter to demand Brnovich investigate. He echoed Foster’s contention that once a worker makes an assertion of a sincerely held religious belief, the city cannot question it.
Leach was acting under a 2016 law that allows lawmakers to demand an inquiry but also requires the attorney general to investigate within 30 days. More to the point, that law says if the attorney general finds a local law or policy is contrary to state law, he can order the state treasurer to withhold certain revenue sharing dollars.
But Tucson was not giving up without a fight.
In a letter to the Attorney General’s Office, City Attorney Mike Rankin said the section of law that both Foster and Leach cited simply doesn’t — and can’t — apply to the city.
The wording about providing an accommodation to workers who claim a religious exemption itself has an exemption, if doing so would pose more than a minimal cost “to the operation of the employer’s business.”
“The city of Tucson — and any municipal or county government — is not engaged in a ‘business,’” Rankin wrote.
He also pointed out that lawmakers tried to ban cities from imposing any sort of vaccine mandate, at least until that law was struck down.
“How can the Legislature have intended the law to require the city to provide a religious accommodation for a requirement that ... the Legislature intended to prohibit the city from imposing in the first place?” he asked.
Rankin suggested that if Brnovich pushed the issue, he could wind up back in court. As the city sees it, the language on religious exemption was as illegally enacted and is as void as the other provisions the Maricopa County judge already declared illegally adopted, Rankin said.
Leach, in explaining why he withdrew his demand, said it became clear the legal issues are far too complex to try to get a definitive ruling from Brnovich within the 30-day window in which the law requires him to act.
“It wasn’t going to be a clear picture,” he said.
Tucson Mayor Regina Romero told Capitol Media Services the provision at issue never should have been enacted in the first place.
“I wish that our state legislators and governor would spend as much time on the numerous issues facing our state, including the current rise in COVID-19 cases, as they do trying to micromanage the city of Tucson,” she said.
“They knew this was a futile effort all along without any legal merit,” Romero continued. “Stop wasting our time and taxpayer dollars.”
Romero said that as of the council meeting last week, 88% of city workers were vaccinated. When adding in those who received exemptions, that brings compliance up to 98%, leaving 86 employees in violation. The deadline is Dec. 1 to comply or face job termination.
“The city of Tucson’s vaccine policy has proven to be overwhelmingly effective in increasing our vaccination rate and protecting the community we serve,” she said.
Leach pointed out there are other cases about vaccine requirements pending in federal court.
Those lawsuits, however, challenge various actions by the Biden administration. Those include a vaccine mandate for federal employees and contractors, as well as a new rule by the Occupational Safety and Health Administration mandating either vaccination or regular testing of workers of any company with more than 100 workers.
But even if the challengers win, neither lawsuit is likely to effect Tucson’s decision or force the City Council to rescind its mandate.
That leaves the possibility lawmakers will try to reenact the state ban on vaccine requirements for government workers when the Legislature convenes in January.
In voiding that requirement in September, Cooper didn’t get to the legal question of whether state legislators have the power to preclude such local orders. Instead, she ruled the method they used to approve the ban was unconstitutional because they tacked it on to unrelated legislation and did not properly inform the public of its insertion into the bill.
