The Tucson Police Officers Association has filed a lawsuit against the city seeking to strike down the COVID-19 vaccine mandate for employees that the City Council passed Friday.
The labor union filed a complaint in the Pima County Superior Court on Monday asking for preliminary and permanent injunctions of any city enforcement of the mandate.
Mayor Regina Romero, all six City Council members and City Manager Michael Ortega are listed as defendants in the lawsuit, where the union alleges the city breached the union’s contract and violated state law.
In a 6-1 vote Friday, the council decided to make vaccinations mandatory for nearly 4,500 city employees, including about 760 in the police department.
The new ordinance will require all unvaccinated employees to provide proof of at least their first vaccine dose by Aug. 24 or face a five-day suspension. However, the mandate won’t go into effect if 750 unvaccinated employees submit proof of at least their first vaccination by Aug. 20.
In addition to the five-day suspension, unvaccinated employees could be subject to weekly testing requirements, more stringent mask-wearing guidelines, travel restrictions and eligibility restrictions for certain assignments.
Breach of contract allegations
The union wants the court to declare the vaccine mandate unlawful and require the city to “comply with its contractual obligations,” the complaint says.
On Aug. 4, the police officers’ association joined with two other city employee unions — Tucson Fire Fighters Association and The Communication Workers of America Local #7026 — in writing a letter to Ortega maintaining the mandate would be a change to the unions’ “terms and conditions of employment,” and not Ortega’s management right.
The labor organizations asked to bargain with the city before the mandate’s implementation, but the complaint said this never happened.
Much of the complaint hinges on that argument: that the city breached its contract with the police union “by unilaterally enacting the ordinance without first bargaining in good faith over the change in working conditions.”
In Ortega’s memo to the mayor and council outlining the mandate, the city manager said the city has “the legal duty to provide and maintain a safe and healthy workplace for its employees.”
“The city of Tucson, as an employer, may lawfully compel its employees to get vaccinated against COVID-19, and/or to get regular testing to determine any COVID-19 infection, subject to legally required exemptions and/or accommodations,” Ortega wrote. Those accommodations exempting certain employees from the mandate with medical conditions and sincerely held religious beliefs were included in the ordinance.
The police union is asking the court to declare the city “acted in bad faith” by not negotiating with the union and that the ordinance mandating vaccines is “void and unenforceable.”
Police union leaders didn’t respond to the Arizona Daily Star’s request for comment on the case, nor did their attorney Brian Marchetti.
But before the City Council took a vote on mandating vaccines, the union released a statement on its Facebook page:
“We take the pandemic seriously. We also take our employee rights seriously. The city made this decision outside of the normal meet and confer process and without regard to the several labor agreements that govern changes in working conditions.
“The decision to vaccinate is extremely complicated and deeply personal. We call for the city to delay this policy. Our police and fire personnel have been stretched to the limit over the past year and a half. Now is the time to stand together, not make rash decisions.”
Arguments over state law
Also coming into play is a state law banning local jurisdictions from mandating vaccines.
Ducey signed that budget reconciliation bill in June, but the complaint also points to Ducey’s April 19 executive order prohibiting local governments from adopting an ordinance “that requires an individual to provide documentation regarding the individual’s COVID-19 vaccination status as a condition of receiving any service, permit, license, or other work authorization requirement issued by the jurisdiction.”
While the law doesn’t take effect until Sept. 29, Ducey’s order remains in place until the state’s public-health emergency ends, and it is still in place.
A status conference for the case is set for Wednesday.
Contact reporter Nicole Ludden at firstname.lastname@example.org