States vs. municipalities on masks

Mesa lawmaker Sen. Townsend withdraws complaint over Pima mask rule

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PHOENIX — Pima County is out of danger of having its state funds slashed because of its policies requiring most of its employees to be vaccinated — at least for the time being.

Sen. Kelly Townsend, R-Mesa, on Thursday withdrew her demand that Attorney General Mark Brnovich investigate whether the county is violating state law because it does not provide an automatic exemption for employees who claim that getting vaccinated against COVID runs afoul of their “sincerely held religious beliefs.” A finding of a violation by Brnovich would require him to order that the county forfeit millions of dollars in state aid.

But Townsend said this isn’t the end of the matter.

She noted that her complaint was filed under a state law which gave the attorney general just 30 days to issue a finding.

That 30-day period ends Friday, Jan. 7.

Townsend said, though, that really wasn’t enough time for Brnovich to look at the situation of each individual employee denied a religious exemption to determine if the county was violating the law.

More to the point, she said this now provides a window for county employees who have been denied an exemption to speak up.

“I am asking people to go to the (attorney general’s) website and file a civil rights complaint so that they can start the investigations,” she said. And Townsend said she believes that Brnovich's office eventually will conclude that the policy does violate the law — and the county is guilty of violating the civil rights of who were denied exemptions.

Brnovich appears poised to do just that.

“Our Civil Rights Division takes all complaints very seriously and will take appropriate action when necessary to ensure the medical and religious rights of our citizens are protected,” said agency spokeswoman Katie Conner of Townsend's decision to withdraw her formal complaint.

The fight is over a law approved last year which says that any employer who is told by a worker he or she has a sincerely held religious belief against the COVID vaccine “shall provide a reasonable accommodation.”

Pima supervisors adopted a policy that requires a vaccination of all employees who work with “vulnerable populations.” Jan Lesher, the acting county administrator, told Capitol Media Services last month that includes people working in the jails, including those in the behavioral health unit trying to restore inmates to competency to stand trial and public defenders.

Others covered by the policy include those who work with senior citizens or those who have compromised immune systems. And part of the test is whether the employee will be within six feet of a vulnerable person for 15 or more cumulative minutes within a 24 hour period.

As of the end of December, out of the nearly 2,100 workers who were working with vulnerable populations, more than 200 were set to be terminated by Friday for failing to comply by the deadline.

The problem with all that, said Townsend, is that the new law obligates the county to provide a religious exemption to anyone who claims it. At that point, she said, the county is required to provide “reasonable accommodations” unless it would “pose an undue hardship and more than a de minimis cost to the operation of the employer’s business.”

Townsend said there is no reason to believe that each and every worker who claims a religious exemption is not entitled to it.

“Employers have successfully adjusted to accommodate COVID-19 in the workplace for nearly two years,” she said.

Lesher said the county policy does provide for accommodations. But there are restrictions.

Anyone who gets one of these accommodations is not to be allowed to attend in-person meetings and instead has to participate virtually. There’s also a requirement to wear a mask at all times when in a county building or workspace, and a prohibition against eating or drinking in shared work areas.

And there is a requirement for weekly testing for COVID-19 which, for those who claim a religious exemption, will be out of their own pocket.

But the fact remains that if there are not enough such positions available, the workers could end up without a job in county government.

That, said Townsend, appears to run afoul of the law.

Then there’s the question of what is a “sincerely held religious belief.”

Townsend contends that the declaration, by itself, is sufficient — and that employers cannot inquire further into the matter, to the point of prohibiting further inquiry even about the worker's prior practices.

“A person’s religion can change at any moment,” she said. “Therefore, you cannot put a timeline on it.”

All that, Townsend said, will require Brnovich to do more than review the policy on paper. She said the attorney general now needs to see how it actually is applied, who is affected and whether those who have been denied accommodations are having their civil rights violated.

And there’s something else.

The county is not offering reasonable accommodations for new employees: No vaccination means no job.

Lesher said it’s one thing to work with existing workers, particularly if they are or can be put into positions where they have little or no contact with the public.

“Distancing and mandatory mask wearing have proven sufficient in those instances,” she said. “However we have no relationship with new hires and it's not disruptive to require vaccination as a hiring requirement.”

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