Senator wants Tucson investigated, with $100M-plus at stake, over employee vaccine rule

PHOENIX — A lawmaker is compelling the attorney general to investigate Tucson — and potentially penalize it by more than $100 million — for requiring city workers to be vaccinated against COVID-19.

Sen. Vince Leach, R-Tucson, filed a complaint Thursday charging that the city is acting illegally, not in imposing the mandate but in refusing to automatically grant a religious exemption to any worker who seeks one. He said that violates a state law approved earlier this year, an argument the city attorney disputes.

Leach’s complaint mirrors a letter that Anni Foster, legal counsel to Gov. Doug Ducey, sent a day earlier to city officials. She cited the same law that took effect on Sept. 29.

Foster’s letter, by itself, has no legal effect. Leach said all it could do is lead to litigation, which he said could take months, or longer, to resolve.

Instead, Leach is using a statute lawmakers approved in 2016, known as SB 1487, giving them the power to demand that the attorney general investigate. That law requires Attorney General Mark Brnovich to reach a conclusion within 30 days.

More significant, if Brnovich concludes the city action is contrary to state law, he is required to order the state treasurer to withhold certain revenue sharing dollars. For Tucson, that amounts to more than $100 million a year.

The city would have the right to contest that. But the case would go directly to the Arizona Supreme Court, bypassing the need for months of pretrial hearings.

Even a finding by Brnovich that the ordinance might violate the law would trigger an automatic Supreme Court hearing and a quick resolution.

Leach said he thinks the violation is clear.

In ordering city government’s more than 4,000 employees to get vaccinated, the City Council included exceptions for medical reasons.

It is also allowing workers to “request’’ an exemption due to “sincerely held religious beliefs.’’ But the policy gives city officials the last word about whether to grant that request.

Leach said that’s contrary to the new state law, which covers not just employees of public entities, but all workers.

If a worker says “sincerely held religious beliefs, practices or observances” prevent them from taking the COVID-19 vaccination, that law requires the employer to “provide a reasonable accommodation’’ unless that “would pose an undue hardship” and more than a minimal cost to the operation of the business.

The law does not define the “reasonable accommodation.”

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But the federal Equal Employment Opportunity Commission has some examples, such as changing someone’s work schedule. Other legal sources say that when the issue is something like the COVID vaccine, options include mask wearing, social distancing and remote working.

Leach said that under the Arizona law, once the worker makes the assertion, the city cannot question it.

He sidestepped the question of whether this law can be abused by someone who simply doesn’t want to be vaccinated, saying that could be said about other statutes. Leach is also undeterred by the fact that no leader of a major faith has said getting the vaccine violates religious beliefs.

“This is a religious belief held internally by yourself,’’ he said.

But City Attorney Mike Rankin, in a letter late Thursday to Foster, said she — and, by extension, Leach — are legally wrong about the scope and reach of the law they say Tucson is violating.

“The subject matter of the statute — accommodations for ‘sincerely held religious beliefs’ — is already governed by federal law,’’ Rankin wrote. “This new Arizona law really adds nothing to the obligations of Arizona employers who choose to require COVID-19 vaccination as a condition of employment.’’

He also pointed out that the city policy establishing a process for considering religious accommodation requests goes back to August, when the council first enacted a mandate and gave workers an Aug. 24 deadline to respond. That was a full month before the effective date of the law the city is accused of violating, he noted.

In seeking intervention by Brnovich, Leach is not asking the attorney general to rule on the other part of Foster’s complaint: that the council action runs afoul of one of Ducey’s executive orders, which she contends precludes local vaccine mandates. The 2016 law Leach is using to force action by Brnovich allows legislators to question only alleged violations of state law, not gubernatorial edicts.

Despite that, Rankin, in his response to Foster, said she is legally off-base on that claim, too.

“The governor has absolutely no legal authority to use an executive order to preempt or preclude the mayor and council’s exercise of their independent legislative authority under the Tucson Charter, the Arizona Constitution, or other Arizona law, to enact and enforce policies that they determine are necessary and appropriate to promote and protect the health and safety of city employees,’’ Rankin wrote. He told Foster that’s the legal advice he gave council members.

“I would hope that, in your role as the governor’s general counsel, you have provided him the same advice regarding the limitations on his authority, since it is quite clearly the law,’’ Rankin said.

Regardless, Leach’s complaint forces Brnovich to weigh in.

Brnovich, a Republican candidate for U.S. Senate, is hardly a blank slate on the issue of mandatory vaccinations. He filed suit last month after the Biden administration announced it will alter worker safety rules to require vaccines of all employers with more than 100 employees, calling it “a power grab.”

But that lawsuit is based more on whether the federal government is usurping powers that belong to the states, something that is not an issue here.