Tucson public employees can refuse vaccine relying on Executive Order and State law
PHOENIX – Attorney General Mark Brnovich announced that his office (AGO) determined the City of Tucson’s COVID-19 vaccine mandate for public employees does violate state law for purposes of S.B. 1487, and also is in direct conflict with the Governor’s Executive Order 2021-18. Therefore, Tucson must rescind or amend the ordinance to come into compliance with state law, or lose millions of dollars in state funding.
“Tucson’s vaccine mandate is illegal, and the city could be held liable for attempting to force employees to take it against their beliefs,” said Attorney General Mark Brnovich. “COVID-19 vaccinations should be a choice, not a government mandate.”
Through a “S.B. 1487” investigation, the AGO determined Tucson’s Ordinance 11869, which mandates COVID-19 vaccines for city employees, violates state law and thus the city cannot require public employees to obtain a COVID-19 vaccine. The legislature’s intent was clear when it passed S.B. 1824 earlier this year – government entities from the local to state level cannot mandate COVID-19 vaccines. This law was further supplemented by the Governor’s Executive Order 2021-18 (E.O. 2021-18) in August 2021.In the AGO’s opinion, Tucson public employees could rely in good faith on E.O. 2021-18 and state law to refuse the city’s COVID-19 vaccine mandate.
Today, the AGO officially notified the City of Tucson that its COVID-19 vaccine ordinance is in violation of state law and must be rescinded or amended. As expressly provided in S.B. 1487, if the City of Tucson does not rescind its policy within the next 30 days, the AGO will notify the Arizona Treasurer, who will withhold the city’s portion of state shared revenue until it comes into compliance.
Additionally, the AGO believes the City of Tucson could subject itself to potential liability claims if it were to take adverse action against an employee who relies on E.O. 2021-18 and state law to refuse the vaccine.
Copy of AGO 1487 report on Tucson Ordinance here.
Today’s decision stems from a S.B. 1487 complaint filed by Senator Kelly Townsend under A.R.S. § 41-194.01, which authorizes a legislator to request the AGO investigate a county, city, or town alleged to be in violation of state law.
During the 2021 legislative session, Arizona lawmakers passed S.B. 1824 that statutorily forbids city governments from imposing COVID-19 vaccine mandates on employees. However, on August 13, 2021, Tucson adopted an ordinance requiring public employees to provide proof of vaccination for COVID-19 by 4:00 p.m. on August 24, 2021, or face a five-day suspension without pay. The AGO determined Tucson city council was exploiting a loophole in S.B. 1824 that delayed the law from going into effect until September 29, 2021.
To stop the city’s manipulative move, Governor Ducey issued an Executive Order 2021-18 to stop cities from implementing COVID-19 vaccine mandates until the law went into effect. However, Tucson refuses to rescind its ordinance, forcing employees to either get the COVID-19 vaccine or face a five-day suspension without pay.
The AGO recently issued a legal opinion regarding whether an employer can require a COVID-19 vaccine as a condition of employment. Private businesses must allow for certain exemptions for employees (religious and medical) when it comes to the COVID-19 vaccine. A sincerely-held religious belief includes a moral or ethical belief against receiving a COVID-19 vaccination that has the strength of a traditional religious view. The sincerity of that belief should be judged based on the employee's words and conduct at the time the conflict about the COVID-19 vaccine arises and not based on prior words or conduct.