Alameda next?

First came the cities of San Francisco and Pasadena, which mandated that all of their employees get vaccinated against the COVID‑19 virus (and submit proof thereof) as soon as the federal Food and Drug Administration formally approves one of the three vaccines that have been authorized for emergency use.

There followed the cities of Long Beach, Los Angeles, San Jose, Walnut Creek, and Sacramento, all of which adopted policies requiring their employees to get vaccinated (and submit proof thereof) even before FDA approval.  An unvaccinated employee in these cities, except for Sacramento, can avoid the requirement by submitting proof of a negative coronavirus test every week.  But in at least three of them, failure to supply proof of vaccination (or a negative test result) will result in disciplinary action, even termination.

Could the City of Alameda be next?

Maybe.

Since early in the pandemic, City Manager Eric Levitt told the Merry-Go-Round, the City has required all City employees – except firefighters – to wear masks while working indoors.  (Fire stations are considered “living quarters” exempt from the masking requirement, Mr. Levitt said.)  Moreover, when the City reopened City Hall and other municipal buildings to the public in early July, it required visitors – even those who had been fully vaccinated – to wear masks as well.  (This was stricter than the CDC guidelines, which would have permitted fully vaccinated visitors to go unmasked.)

Now, Mr. Levitt told us, he is considering issuing what he called a “modified [vaccination] mandate.”  All City employees, including cops and firefighters, would be required to get vaccinated – or to submit to “frequent” testing if they aren’t.  Exceptions would be made for “religious or medical” reasons.  Still to be determined are when the mandate would begin (i.e., before or after FDA approval); what proof of vaccination would suffice, and what sanctions would result from non-compliance.

“In weighing all the factors, I believe the health of employees and individuals doing business is critical,” Mr. Levitt said.  “We are a service organization, and many of our employees come into contact with other employees and the public (for instance, public safety).  It has been shown that the vaccine is a critical tool in trying to move forward through this time.  In consideration of those factors and protecting employees and the public to the extent possible, a modified mandate for our City facilities is likely a critical step.”

We haven’t discussed the issue with City Attorney Yibin Shen – we’re sure he’d refuse to address “hypothetical” questions – but it would appear that, as city manager, Mr. Levitt has the right to impose the “modified mandate” on his own authority.  Even so, being the careful man he is, Mr. Levitt undoubtedly will consult the City Council.  Who knows?  One of them may even consider himself an expert on the issue.

Moreover, the City Manager surely will be discussing the terms of any mandate with the unions and other organizations representing City employees, including the Alameda City Employees Association, the Alameda Police Officers Association and – of course – Local 689 of the International Association of Firefighters.  As we will discuss below, employee vaccination mandates have spurred union opposition in several cities, most recently Sacramento.

(Our focus today is on California municipalities.  We note that the State of California has imposed vaccination mandates for state employees and health‑care workers.  In addition, Governor Newsom last week issued a similar order for teachers and school staff.)

The recent surge in new COVID‑19 cases resulting from the spread of the Delta variant has acted as the catalyst for the flood of employee vaccination mandates issued by California cities.  For example, the most recently announced order (in Sacramento) came after Sacramento County’s daily cases skyrocketed from 7.2 per 100,000 residents for the week ending July 1 up to 28 per 100,000 by July 31.

The situation in Alameda may be a bit better – but not by much.  According to the City’s website, 83 new coronavirus cases were reported in Alameda in the latest seven‑day period, compared to 54 in the previous seven‑day period.  (For the respective 30‑day periods, the numbers are 328 versus 238.)

Sarah Henry, the City’s Public Information Officer, gave us this chart that depicts the surge graphically:

Officials in the California cities that have issued employee vaccination mandates have emphasized that they are intended to protect city workers as well as residents.  “Ensuring our workforce is protected against the worst impacts of COVID‑19 means our essential staff will remain able to keep this city running,” San Jose Deputy City Manager Lee Wilcox said.  “And by slowing the spread of the virus through vaccination, we do our part to keep our residents safe.”

The employee vaccination mandates apply to cops and firefighters as well as other city workers.  “When a police officer arrives at your home, a firefighter arrives at your home, because you need our assistance, you don’t get to choose if we send the vaccinated ones or the nonvaccinated ones,” Pasadena City Manager Steve Mermell said. “The public has to come into contact with city employees. We want the city employees to be healthy, we want the public not to get ill.”

In fact, it appears that, in several cities, concerns about lagging vaccination rates among cops and firefighters may have prompted city officials to make getting vaccinated mandatory.  For example, in Long Beach, while the overall vaccination rate for municipal employees (72 percent) was close to the percentage of adult residents who had received at least one shot (71.9 percent), only 56 percent of police department employees and 66 percent of fire department employees reported they were fully vaccinated.  (The percentages were even lower for sworn officers:  51 percent of cops and 58 percent of firefighters).  This complicated the city’s ability to serve the public, officials said.  “We’ve even had community members call the City Manager’s Office, saying that they only want vaccinated police and fire to respond to their incident if they need to call 911 for help.  And at this point that’s not feasible,” a Pasadena spokesperson said.

As for Alameda, the City’s website shows that 61,922 (90.9 percent) of Alamedans 12 years and older have received at least one dose of a vaccine, and 53,185 (78.1 percent) are fully vaccinated.  We don’t know yet whether there is any disparity between these vaccination rates and those of cops and firefighters (or other municipal employees).  But we will soon.

Mr. Levitt and City Human Resources Director Nancy Bronstein told us that the City initially conducted what Ms. Bronstein called a “voluntary” survey of its employees about their vaccination status.  Mr. Levitt said that the survey was sent to approximately 550 full‑time employees; 340 responded, and 94 percent stated they had received at least one dose of a vaccine.

Thereafter, Mr. Levitt and Ms. Bronstein decided to take a more rigorous approach.  Now, all City employees have been asked to “attest through a signed document” what their vaccination status is.  The results are expected to be available next week.

At least at the outset, the employee vaccination mandates adopted by other California cities did not arouse much opposition.  Indeed, in Los Angeles, one union official – SEIU Local 721 president David Green, whose union represents a range of city employees, including custodians, sanitation workers and mechanics – actually praised the move as “a practical first step toward ensuring city employees can remain safe on the job and continue delivering the critical services Angelenos depend on.”

But that may be changing.  Just last week, the San Francisco human resources department received 192 letters from city workers – 103 of them employed by the fire department – stating that they would submit to the vaccination mandate only if the city acceded to what the San Francisco Chronicle described as a “long list of demands and disclosures around vaccine safety that health experts said were ‘nonsensical’ or false.”

Likewise, even before the city of Sacramento had adopted its employee vaccination mandate, the local firefighters’ union sent the mayor and council a letter opposing the policy.  The union “adamantly supports our members having the ‘right to choose’ to be vaccinated or not,” the union said.  After the mandate was announced, the firefighters’ union reiterated its position, and the head of the police union accused the city of “punish[ing] employees for making personal medical choices” and vowed to fight the mandate “with every tool we have.”

Sacramento mayor Darrell Steinberg was not amused – or persuaded.  “It is highly irresponsible to insist that this is a matter of personal freedom and choice,” he wrote to the firefighters’ union.  “Medically vulnerable residents of our city should be able to trust that a firefighter or paramedic who arrives to help them won’t infect them.”

What stance will Alameda’s own public-employee unions take toward a vaccination mandate?  We sent emails asking this question to the heads of both the police and fire unions.

Kevin Horikoshi, president of the Alameda Police Officers Association, replied that, “We feel along the same lines as other unions surrounding us – we feel like it should be the employee’s right to choose.”  Nevertheless, “If the vaccines got full approval from the U.S. Food and Drug Administration, we could see mandating everybody get the vaccine.”

After this piece was posted, Brandon Baley, president of IAFF Local 689, provided the following information:

As far as vaccination status of our membership, 98% of Local 689 members are fully vaccinated. We took a position early to get our members fully vaccinated to ensure the safety of the community we proudly serve, and to keep ourselves safe through these difficult times.

Last week, we reported on the orders being issued by governmental bodies around the U.S. (and the world) requiring people to furnish proof of vaccination (or a recent negative coronavirus test) in order to gain access to bars, restaurants, and other indoor venues.  (The city of San Francisco joined the list on August 12).  Now, similar vaccination mandates are being issued for public employees.

Our local politicians always try to make sure that the City is an early adopter of the latest “progressive” ideas making their way around the country.  Will they do the same for public health?

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall, Firefighters and tagged , , , , , , . Bookmark the permalink.

5 Responses to Alameda next?

  1. Camille says:

    Anyone who deals with the public should be vaccinated. The only way to get people who are resistent to this protocal is to make it a mandate. It’s a health care concern. Employers are completely within their rights to require this mandate and non vaxers are completely within their rights to stay home or be tested at regular intervals to show they are not carriers. I will not attend a venue that does not require proof of vaccination. Want things to get back to normal? Get vaxed, wear a mask, practice social distancing. If you don’t want to carry your card with you. You can easily register for your digital vaccination record for access on your mobile device here: https://myvaccinerecord.cdph.ca.gov
    Call it progressive, reactive or unconstitutional. No one has the right to willfully inflict a disease on the public that will kill members of their community or family.

  2. Brandon Baley says:

    Mr. Sullwold,

    I never received a phone call or an email in regards to the stance Alameda Firefighters Local 689 has on mandatory vaccinations. As far as vaccination status of our membership, 98% of Local 689 members are fully vaccinated. We took a position early to get our members fully vaccinated to ensure the safety of the community we proudly serve, and to keep ourselves safe through these difficult times.
    Please feel free to contact me anytime if you would like to discuss this any further, or any other topics involving Alameda Firefighters Local 689.

    Thank you,

    President Brandon Baley, Alameda Firefighters Local 689

    • Mr. Baley,

      Thank you for your comment.

      I sent my email inquiry to your City of Alameda email address, which I got from the PIO. I assume the email address from which you sent your comment is your personal email address, and that’s the one I will use in the future.

      I have updated the column to include the information you provided about vaccination status.

  3. David says:

    https://www.kron4.com/news/bay-area/alameda-county-firefighters-oppose-mandatory-vaccination-for-members/
    ALAMEDA COUNTY, Calif. (KRON) – The Alameda County Firefighters, IAFF Local 55, released a statement on Friday announcing that they oppose mandating COVID-19 vaccines to their members.

    Local 55 stands with the Sacramento Area Firefighters who recently stated their position on vaccine mandates and support the right to personal choice.

    • Frank says:

      Every single person who got COVID was infected by another person. If I am in an accident, my “right to personal choice” is for a firefighter paramedic who “made a personal choice” to protect me from COVID transmission from them. Outside our city where IAFF Local 689 cares about my right – If I’m bleeding out and most vulnerable to infection, how do I effect my right?

      In the legal sense, this IAFF Local 55 vaccine “right to personal choice” literally does not exist in the US, as our Supreme Court has repeatedly decided, e.g., 1905 Jacobson v. Massachusetts. They said, “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State. It is within the police power of a State to enact a compulsory vaccination law…”

      The Supreme Court was upholding a Massachusetts law that said, “the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof…”

      In this case, the city of Cambridge board of health issued a regulation that said, “Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues to increase; and whereas it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated, and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants of the city who have not been successfully vaccinated since March 1, 1897, be vaccinated or revaccinated.”

      Just days ago, Justice Amy Coney Barrett flat rejected a similar challenge to Indiana University’s vaccine mandate.

      Is it possible for our Supreme Court to have been clearer? Is there any ambiguity that agrees with IAFF Local 55?

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