Phoenix hits pause on requiring city employees take COVID-19 vaccine following judge's ruling
Phoenix has paused implementing a federal requirement that all city employees get the COVID-19 vaccine, hours after a federal judge temporarily blocked the mandate for federal contractors.
The city announced the decision on Twitter.
City Manager Jeff Barton had told employees last month they had to get vaccinated by Jan. 18 because the city, with numerous federal contracts, is considered a federal contractor. An executive order issued by President Joe Biden in September requires all employees of federal contractors to be vaccinated.
The City Council will discuss the mandate for the first time publicly on Tuesday afternoon, including a discussion of legal advice from staff and outside counsel on the topic.
But earlier in the day, U.S. District Judge R. Stan Baker in Georgia temporarily blocked the vaccine mandate for federal contractors nationally.
Phoenix had stood alone among Valley cities in mandating the vaccine for employees. Officials in other large Maricopa County municipalities say they are not considering a vaccine requirement for their employees at this time, and many Valley cities do not believe the executive order applies to their workers, according to statements they provided to The Arizona Republic.
The requirement for cities may be different, depending on the type of federal contracts they have. A definitive answer could come over time, as the federal government gets more specific about the rules, and federal courts decide whether they will stick.
The contractor mandate is one of two federal rules that could potentially apply to large Arizona cities. The other, a federal workplace safety rule, requires employees of companies or organizations with more than 100 employees to get vaccinated or get tested regularly.
Both federal mandates are being challenged in court in states across the country, leading many employers — public and private — to play a waiting game before instituting rules for employees.
Phoenix decided to move forward last month after the city received an addendum to an expiring federal contract for security measures at Phoenix Sky Harbor International Airport that “made clear the city was included,” in the federal contractor mandate, said Dan Wilson, a city spokesperson.
“As soon as we received the notification, we acted quickly to provide our employees as much time as possible to either get vaccinated or prepare requests for exemptions,” Wilson said.
Meanwhile, 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 Arizona Republic. Goodyear, Peoria, Surprise and Tempe officials say more vaguely that they are not considering mandates at this time.
This contrasts with Tucson, where the City Council in August implemented a vaccine mandate for employees on its own will. Other than Phoenix, it’s currently the only other large city in Arizona with an employee vaccine requirement.
Phoenix discusses employee vaccination requirement
In Phoenix, a few council members have said they oppose the mandate, and sought public discussion on the topic. Two of the city’s public safety unions have joined onto Attorney General Mark Brnovich's lawsuit attempting to strike down the Biden Administration's mandate.
The unions, which represent city police officers and firefighters, say they believe it’s their members personal choice whether they are vaccinated.
City legal staff, as well as outside counsel the city has had weigh in on the topic, do not believe the city has a choice on the matter if the federal mandate remains.
“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.”
Mayor Kate Gallego has said it’s good public health policy, and the majority of the council has not spoken out against it. It’s unclear whether the council would have had the authority to stop the city requirement. As city manager, Barton has authority over city employees.
Under the paused rules, employees would have been able to request religious or medical exemptions by Dec. 31, which would have been reviewed by staff from Human Resources, Equal Opportunity and Law departments.
Employees who did not comply by Jan. 18 would have been "contacted and subject to progressive discipline up to and including termination," according to a city letter.
Osborn Maledon attorneys noted in their memo to the city attorney that “future developments in the pending lawsuits could prevent the federal government from implementing the program” in Phoenix.
A federal appeals court blocked the implementation of the federal rule for large employers, and Tuesday's ruling out of Georgia blocks implementation of the federal contractor rule.
If both executive orders withstand the legal challenges, employees of large Arizona cities will be subject to one or the other.
A city may fall under the federal contractor executive order if it has a certain type of contract. In that case, all employees must be vaccinated unless the company or government approves an exemption.
If the city is not a federal contractor but has more than 100 employees, under the other mandate employees will be required to either get vaccinated for COVID-19 or get regularly tested for the virus.
Other cities say they aren’t federal contractors
Legal staff for the League of Arizona Cities and Towns told cities they should make the decision locally on whether the federal contractor mandate applies to them, according to Executive Director Tom Belshe.
Federal grants for projects alone do not make cities and towns federal contractors under the order, Belshe said, and that’s most of the contracting cities and towns do with the federal government.
Glendale reached out to numerous federal agencies the city partners with and was told that local jurisdictions that work with federal agencies are not considered federal contractors, according to Deputy City Manager Rick St. John.
In Gilbert, the town Attorney’s Office says the town has not entered into any contracts that would subject the town to the federal contractor mandate.
Phoenix’s renewing airport contract requirement could be a signal for other cities with airports that they will be subject to the contractor order.
But so far, other cities are not considering mandates.
“The City of Mesa currently has no federal contracts that fit within President Biden’s executive order from Sept. 9, 2021,” city spokesperson Kevin Christopher said.
Even if the airports are subject to the federal mandate, cities may still try to take a different approach than Phoenix.
In Charlotte, North Carolina, for example, the city owns and operates the Charlotte Douglas International Airport. But instead of making all city employees get vaccinated, it has so far only mandated the vaccine for city employees who work at the airport.