Phoenix pauses vaccine mandate for employees, citing halt to federal order, as protesters take to streets

·7 min read

Phoenix will hold off on requiring its employees to be vaccinated for COVID-19 after a federal judge on Tuesday halted the federal mandate the city says requires its employees to be vaccinated.

On Tuesday morning, U.S. District Judge R. Stan Baker in Georgia temporarily blocked an executive order issued by President Joe Biden in September that requires all employees of federal contractors to be vaccinated for COVID-19.

City Manager Jeff Barton told employees last month they had to get vaccinated to comply with the mandate because the city, with numerous federal contracts, is considered a federal contractor.

The city announced on social media Tuesday afternoon that the city was halting the requirement for employees while the numerous related court cases are resolved. In a letter to city employees, city leaders said the pause will also allow the city to "further explore our options regarding implementation of the requirement, should it stand."

"Although the implementation of the vaccine requirement is on hold, employee safety remains top priority and we encourage employees to take advantage of the free COVID vaccine, booster shot, and testing options that are currently available," the letter said.

City officials already had planned to talk about the mandate on Tuesday, after facing opposition from a few council members and as public safety unions joined Arizona Attorney General Mark Brnovich's lawsuit challenging the federal order.

As the city announced its delay, a few hundred protesters were gathered in front of the Arizona State Capitol to oppose vaccine mandates, including the one in Phoenix. The protesters, holding signs that said "terminate the mandate," "the final variant is communism" and "mandates violate sovereign rights," marched to the City Council building as the meeting to discuss the mandate got underway.

The council heard from dozens of residents for and against the mandate and health care professionals in support. On an online public comment form, hundreds told the council they were opposed.

Phoenix firefighter Tom Priest said the city will lose employees over the mandate.

"This is illogical and it's immoral," he said.

Michael White, chief clinical officer of Valleywise Health System, told the council that the system's hospitals are running at capacity, with more COVID-19 patients than this time last year when vaccines were not available — of those patients, he said 90% are unvaccinated.

"We need your help," White said.

Councilmember Yassamin Ansari encouraged employees to follow the latest science, which shows that vaccines help prevent infection and serious illness from COVID-19.

"It's concerning to me that we are potentially exposing vulnerable members of the public who do not have a choice whether vaccinated or unvaccinated city employees come to their assistance," Ansari said.

Councilmember Jim Waring said he believes the city made the correct decision to put the mandate on hold, and the city "dodged a bullet" with the federal court's decision, since he believes there is a risk many employees, including in public safety, will leave the city if the mandate is imposed.

He and Councilmember Sal DiCiccio questioned why Phoenix is a federal contractor but officials in other Valley cities do not believe they are.

Phoenix has been the only city in the state to implement a vaccine requirement citing the federal contractor mandate. Tucson implemented a mandate for employees on its own will.

No other large Valley city is considering a vaccine mandate at this time, and officials in many cities say they do not believe the federal contractor mandate applies to their workers, according to an Arizona Republic review.

Phoenix legal staff do not believe city has a choice

If the federal mandate for contractors withstands court challenges, city legal staff, as well as outside counsel the city has had weigh in on the topic, do not believe Phoenix has a choice on the matter but to require employees to be vaccinated.

“The City of Phoenix is a federal contractor and has one or more covered contracts within the meaning of Executive Order 14042,” attorneys from law firm Osborn Maledon wrote in a Dec. 3. memo to City Attorney Cris Meyer.

“Consequently, upon extension, renewal, or exercising an option on these existing covered contracts, or upon entering a new covered contract, the City must ensure that its employees are vaccinated against Covid-19,” the letter read. “If the City does not do so, the federal government has indicated that it will decline to extend, renew, or enter into contracts.”

An example of federal contracts that apply include security at Phoenix Sky Harbor International Airport, according to the city attorney.

It's unclear how many employees have been vaccinated or received their first dose of the vaccine in the two weeks after the city announced the requirement.

Before the requirement, the city tracked how many employees were vaccinated only through a voluntary program in which employees could get a $75 award if providing proof of vaccination.

At the time, 6,916 of about 14,000 employees had received awards. As of Tuesday, 7,493 awards had been issued.

Councilmember Debra Stark asked Barton what the federal penalties would be if the city did not follow the federal mandate.

Barton told her it was not entirely clear, but the federal government could decide not to renew the city's contracts, such as one for airport security, or could impose penalties.

Waring said he doesn't believe the federal government would actually shut down the airport.

"If the federal government is going to close the airport, I'd like to see them do it," Waring said.

Mayor Kate Gallego thanked the speakers and emphasized that public safety workers in the city, and specifically firefighters, should get vaccinated to protect the people they serve.

She said the city currently has 44 firefighters out on leave for COVID-19.

"Nothing is perfect, but vaccines are the best tool we have," Gallego said.

DiCiccio and Waring, who oppose the mandate, questioned whether the council could still implement the mandate on its own, regardless of the federal order — seemingly to point out that Gallego and the council that supports the mandate could do it on their own, if they wanted.

Meyer said there may be reasons why the council cannot, but he was not specific as to why.

Will all cities need to comply?

Chandler, Gilbert, Glendale, Mesa and Scottsdale officials do not currently believe they must require their employees to get vaccinated under the federal contractor mandate, according to statements the officials provided to The Republic. Goodyear, Peoria, Surprise and Tempe officials say more vaguely that they are not considering mandates at this time.

It may be that Phoenix needs to comply with the federal contractor mandate, but other Valley cities do not because they have different federal contracts, according to Barton.

Meyer said it may be that those cities have not had their federal contracts come up for renewal yet, like Phoenix has, so it is not clear to them that they need to comply with the mandate. Or, he said, they just haven't looked closely at the issue.

If large Arizona cities do not fall under the contractor mandate, they will fall under a federal workplace safety rule for companies and organizations with more than 100 employees that require employees to either get vaccinated or get tested regularly.

But like the federal contractor mandate, that rule has also been temporarily halted in federal court.

Protesters march to city meeting

Phoenix resident Merissa Hamilton, who used to be a city contractor and ran against Gallego for mayor in 2020, told the council it was not good enough to simply pause the mandate — they needed to put an end to it.

She said the mandate is stressing city employees who want to make the personal decision of whether to get vaccinated.

Hamilton organized Tuesday's rally and march. There, she told the crowd that the mandate was inexcusable and the city can make the decision to ignore the federal mandate.

Kimball Cody told the crowd he was a firefighter for 13 years but was fired from the Salt River Pima-Maricopa Indian Community after the community instituted a vaccine mandate for employees and he did not comply.

Sam Stone, former chief of staff for DiCiccio who is one of several candidates running to replace him in the city's election next year, tore up his vaccination card in front of the crowd.

He said it was his choice to get vaccinated, but employees needed to fight back against a requirement.

"Do not comply," he said.

Reach the reporter at jen.fifield@azcentral.com or at 602-444-8763. Follow her on Twitter @JenAFifield.

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This article originally appeared on Arizona Republic: Phoenix pauses vaccine mandate for employees, citing federal order

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