Ducey Declares War On Tucson Vaccine Mandates, Silent On University Mandates

Governor Doug Ducey [Photo via governor's social media]

Governor Doug Ducey has called a decision by the Tucson City Council to terminate employees who refuse to take a COVID-19 vaccine “unfathomable.” The governor’s attorney suggested a legal challenge could follow.

On Tuesday, the City Council voted 4-3 to approve a vaccine mandate. Employees who do not comply by December 1, will lose their jobs.

City Manager Manager Michael Ortega advised the Council in a memo that approximately 300 of the city’s nearly 4,000 employees have refused to get the controversial vaccination. The majority of employees who sought either religious accommodations or medical exemptions were denied by officials.

Arizona law requires employers to “provide a reasonable accommodation” if an employee cites sincerely held religious beliefs as a reason for not taking the vaccine.  A.R.S. 23-206, which reads:

If an employer receives notice from an employee that the employee’s sincerely held religious beliefs, practices or observances prevent the employee from taking the COVID-19 vaccination, the employer shall provide a reasonable accommodation unless the accommodation would pose an undue hardship and more than a de minimus cost to the operation of the employer’s business.

“It’s unfathomable that after a year as tough as last, the Tucson City Council voted to FIRE unvaccinated city employees,” tweeted Ducey. “The state Legislature has spoken on this issue — they want Arizonans and their sincerely held beliefs to be protected from overreaching mandates.”

Ducey’s General Counsel Annie Foster wrote to City Attorney Mike Rankin:

As part of the agenda item 8 a memo from City Manager Michael Ortega to the Mayor and City Council outlines that a majority of employees who are being considered for termination under the City’s mandatory vaccine policy requested exemptions or accommodations and were denied. Additionally, the Legal Considerations section on page 4 states:

At this time, the City can in fact enforce the requirements described in this Memorandum and can establish additional consequences and penalties for City employees who fail to come into compliance with the vaccination policy. The state law (A.R.S. Sec. 36-681) that was adopted by the Legislature under Senate Bill 1824 and that would otherwise prohibit the City from requiring any person to be vaccinated against COVID-19 has been declared void and unenforceable by order of the Maricopa County Superior Court. The appeal from this order is now pending in front of the Arizona Supreme Court, with oral arguments scheduled for November 2, 2021.

Although the information concerning A.R.S. 36-681 and the pending litigation at the Arizona Supreme Court is correct, there is relevant information that is missing from these legal considerations that affects the city’s ability to take action under such a policy.

First, only sections 12 and 13 of Senate Bill 1824 were deemed unconstitutional. Section 3 is still in effect and establishes A.R.S. 23-206.

This statute does not say when the employee must provide a notice of a sincerely held religious belief, practice or observance, only if that if provided, an employer is required to provide a reasonable accommodation.

Ducey declared that he “took an oath to uphold Arizona’s laws and ensure they are faithfully executed, and I will continue to do so. My office has informed the City of Tucson that their policy is in conflict with the law and, as such, should be rescinded.”

Critics note that Ducey has said nothing to the leaders of the three State universities, who have announced that they will be imposing a vaccine mandate on staff, and students.

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