Message from MEA Attorney Ann M. Smith Re City's Mandatory Vaccination Policy

*This notice was written to MEA members, but is relevant and useful for Local 127 members.*

Dear MEA Members,

Please take a breath and spend a few minutes to read and digest the following information related to the City’s Mandatory Vaccination Policy.

MEA recognizes that for over 80% of MEA-represented employees who are already fully vaccinated, this information will likely seem irrelevant -- but we encourage you to read and understand it and then share it with a colleague who has questions about the legality of what the City is doing.

For those who are not yet fully-vaccinated, MEA’s hope is that this information will help you better understand the legalities of the current situation and, on this basis, make a more informed judgment about your own future. While emotions have tended to run high around this topic, it is important for you to have the best information to make a decision for yourself.

It should be noted, first and foremost, that MEA has always been a leader in this City when it comes to legal challenges against the City for violations of law – the pension litigation to prevent Mike Aguirre’s attempted take-away of vested pension rights and the 10-year Prop B legal battle would be prime examples of this.

Here, the legal landscape is already quite well-defined.

#1: Are vaccine mandates legal? Yes. Since 1905, the United States Supreme Court has held that the government may properly exercise its “police powers” to protect the health and welfare of its citizens by requiring vaccinations. This landmark case was decided with regard to mandatory small pox vaccines and no exemptions were allowed for adults based on medical or religious reasons.

#2: Is it legal for government to mandate vaccines for some but not all? Yes. In 1922, the U. S. Supreme Court held that a vaccine mandate for school children was lawful and did not violate the Constitutional protections of due process and equal protection stated in the 14th Amendment.

#3: Have California’s courts weighed in on the issue of vaccine mandates? Yes. As recently as 2018, two California cases rejected legal challenges to the repeal of a broad “personal belief” exemption to avoid mandatory immunization requirements for school children. The courts upheld mandatory vaccinations because the need for public safety outweighs individuals’ rights to privacy or bodily autonomy and concluded that only an exemption based on a documented medical reason or a sincerely-held religious belief or observance would be allowed.

#4: Have courts been receptive to legal challenges related to mandatory COVID-19 vaccination policies? Not so far. Courts from Texas to Indiana to Massachusetts have rejected challenges by hospital employees, University students and State Troopers related to the requirements to be vaccinated against COVID-19. These courts have all noted that there are always conditions to enrollment in a college or university which an applicant may not like, and that “every employment includes limits on worker’s behavior in exchange for their remuneration and that is all part of the bargain.”

In short, there is no precedent at all that supports a challenge to the City’s mandatory vaccination policy and there is no colorable legal argument available to suggest in good faith that all of these cases since 1905 have been wrongly decided. The courts have uniformly recognized that individual health decisions must give way to the collective public good when the issue is one of infectious disease that spreads from human being to human being and thus puts everyone’s health at risk not just the health of one individual who prefers not to vaccinate. The courts have also noted that, when infectious disease is involved, the “enemy” is the virus, not the government.

#5: Does MEA have the authority as employees’ recognized bargaining representative to stop the City from making a policy decision to require employees to be vaccinated or to insist that the City bargain to impasse with MEA over this decision? No. The law is clear in California that an employer’s decision to require its employees to be vaccinated is not subject to bargaining under the State’s collective bargaining law, the Meyers-Milias-Brown Act (MMBA). The easiest way to understand this concept is to recognize, by analogy, that a public employer always has the right to determine the minimum qualifications for employment -- for example, requiring a particular license, discrete educational degrees, specific work experience, passing a background check or getting a medical clearance. When an employer determines that a public health crisis threatens the health and safety of its entire workforce and the public it serves, adding a vaccination mandate to this list of minimum qualifications is legal and MEA does not have the power to stop it or to demand that the City first get MEA’s agreement to the policy itself.

#6: What is MEA doing to protect the interests of ALL employees? First, it must be acknowledged that MEA represents all employees, including over 80% in its bargaining units who are fully-vaccinated. MEA hears regularly from these members. Likewise, however, MEA hears on a daily basis from the smaller percentage of employees who are opposed to the City’s vaccination mandate and are reluctant or unwilling to comply. As the bargaining representative for all, MEA does not make decisions regarding employee rights based on “majority rule.” The courts have long ago noted that this nation’s laws are often enacted and cases decided in our courts to assure the protection of a minority or a minority point of view against the so-called “tyranny of the majority.”

Here this means that MEA has taken — and will continue to take — all appropriate steps to assure that the City gives employees adequate notice and opportunity to comply with the City’s vaccination mandate or to assert either of the two exemptions which are LEGALLY available in this context where the vaccination mandate itself IS LAWFUL: (1) a documented and substantiated medical exemption requiring a reasonable accommodation under state and federal disability discrimination laws; or (2) a statement that the employee’s sincerely held religious beliefs or observances justify the refusal to vaccinate.

Finally, some employees have asked MEA to predict whether the City will change its mind about this mandatory vaccination policy. Of course, MEA has no crystal ball to know what decisions will be made down the road. We – and YOU -- can only act on what we know at present: the Mayor and City Council are fully committed to the mandatory vaccination policy. As of today, the City has confirmed its intention to send a written communication to all employees to confirm that the current REVISED deadline for compliance with the “fully vaccinated” condition of employment is December 1, 2021, and that the City will begin receiving any asserted written exemptions from employees on and after November 1, 2021. This much we know.

However, what is still unclear is the answer to the two most frequent questions being asked by unvaccinated employees: 1) exactly how will the reasonable accommodation application process work and what documentation will be required to support a request for a medical or religious exemption, and 2) what actions will the City take to implement its policy after December 1 as to those employees who remain unvaccinated and have no qualifying exemption approved during the month of November? MEA continues to hound the City for answers to these still unanswered questions – while also advocating for the clear notice to employees regarding the consequences of noncompliance.

Keeping in mind the scope of what MEA can and cannot do under the well-established law in this area, please feel free to contact MEA for information regarding your options under the circumstances as we know them today.