Vaccine Mandates and Natural Immunity: Which One is More Effective?

Over the last number of weeks throughout California and United States, more employers and States have begun introducing vaccine mandates. President Biden has also sought to introduce a vaccine mandate for over 80 million US workers in private companies and federal workers, requiring to get the vaccine or face termination. California currently has mandates in place for State and healthcare workers; with many Police, Sheriff and Fire departments introducing their own mandates. 

Typically, these mandates only account for two groups of people; those vaccinated against Covid-19 by one of the various vaccines available, and a second group, those who are unvaccinated against Covid-19. The mandates usually require the employee to get a vaccine or face a wide range of possible negative repercussions, which have included termination. Or in the case of President Biden’s recent announcement, the possibility of testing for Covid-19 once a week. These mandates often have two exceptions; first, a documented medical reason, and second, a “sincerely held religious belief.” Those who qualify for an exception are often still required to undergo regular testing for Covid-19. 

Natural Immunity 

The mandates, however, have failed to include and account for a third group of people: those who have previously been infected with Covid-19 and have natural immunity against the virus. 

A new study conducted in Israel, the largest real-world observational study, compared breakthrough infections by the Delta variant between those who had been previously infected and those who had vaccine induced immunity. The study recognized that while the vaccines have been trialed successfully, the long-term immunity and efficacy against new variants was still unknown. Nevertheless, the study concluded that natural immunity confers “longer lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant.” In fact, vaccinated people had a 13.06-fold increase risk for breakthrough infection with Delta variant compared to those who were previous infected. 

Impact on Negotiations 

This study and others make it clear that employers are overlooking a key group of people when they implement these mandates. Employees who have been previously infected may have stronger immunity than those who have been vaccinated, and therefore shouldn’t be treated any differently than those who are vaccinated. Neither should they be required to get the vaccine as they already have longer lasting, and stronger immunity against Covid-19. 

As more studies like this one in Israel are conducted and the evidence becomes clearer and more convincing, associations and those negotiating with employers over these mandates have a clear footing to argue that employers should include this third group of people in their mandates. Failure to do so is to overlook a key scientific component.

President Biden Announces Sweeping New Vaccine Mandate for Federal Workers and Private Businesses

On September 9, 2021, President Biden released an executive order requiring all federal employees to get the Coronavirus vaccination, without the ability to opt-out by getting regularly tested. Federal employees now have until November 22 to get fully vaccinated and be in compliance with the new mandate or face discipline, possibility including termination. In addition to this order, President Biden released yet another order that applies the same guidelines for vaccination for those who contract to do business with the federal government. 

President Biden also has proposed new plans requiring private employers with 100 or more employees to require their workforce become fully vaccinated or be tested for the virus at least once a week. This proposed plan will be released and enforced by the Department of Labor's Occupational Safety and Health Administration (OSHA). This plan is projected to affect over 80 million workers across the nation. Under this new standard, a private employer will have to give their employees paid time off to get their vaccinations or likewise recover from any side effects. The private employers who refuse to comply with the new standard will face enormous fines (up to $14,000 per violation). As this new standard is set to be released and take effect in the coming month or so, many have voiced concerns on how such a policy will be enforced. Many of the specifics of the standard remain unknown, such as the ability for opting out via testing, timelines for compliance, how fines will be imposed, and how OSHA (a relatively small agency) will enforce this sweeping mandate. 

It is yet to be seen how these new federal mandates will affect employers’ meet and confer obligations. As the law stands right now, employers can unilaterally decide to implement vaccine mandates, but must meet and confer with unions over the impacts and effects of such decisions. The increasing number of federal, state, and local mandates may give more authority to employers to impose such mandates. However, employee organizations should always demand to meet and confer over the effects such mandates have on their members’ working conditions. (See previous blog post with list of negotiable impacts and effects.)

The Passage of Senate Bill 2 and the Fight to Protect Due Process in Law Enforcement Decertification

The State Assembly and Senate recently passed Senate Bill 2 (SB 2), and it now awaits to be signed into law by the Governor. SB 2, introduced by Senators Bradford and Atkins, will establish a nine-member Advisory Board that will review “serious misconduct” by peace officers and make recommendations to suspend or revoke a peace officer’s POST certification. SB 2 also made slight changes to the Thomas Bane Civil Rights Act. SB 2 will not go into effect until 2023 because the definition of “serious misconduct” has not been adopted and the Advisory Board needs to be selected. 

Notwithstanding Senator Bradford’s testimony to the contrary, SB 2 originally set up a system where a politically charged and biased Advisory Board was given unchecked power to revoke the certifications of officers even when their own agency, an arbitrator, or a court did not sustain misconduct. Senator Bradford testified that the Advisory Board only made recommendations and the ultimate determination would be left to POST. While technically true, these claims were highly misleading. As originally drafted, SB 2 would have mandated that POST adopt any recommendation that the Advisory Board made if there was any evidence supporting the recommendation. 

Heightening the legitimate concerns of officers, SB 2 contained vague and over-broad definitions of “serious misconduct” and the composition of the Advisory Board guaranteed that officers would not receive a fair evaluation. While POST’s independent judgment has been restored, the final version of SB 2 still provides an Advisory Board where seven of nine members lack any subject matter knowledge of police practices and any impartiality. For example, four of the board members are made up of community activists focusing on police misconduct and family members who are victims of “police violence” (an inherently subjective term). 

SB 2 creates significant changes for peace officers, but it should not give you nightmares. PORAC, David E. Mastagni, Tim Talbot, and other law enforcement stakeholders throughout California worked tirelessly to secure vital amendments. Although SB 2 will become law, our victories in the legislative process will help ensure the due process rights of officers throughout California. 

Decertification Process 

The nine-member Advisory Board is comprised of the following: 

· 1 Current or former officer with command experience. 

· 1 Current or former officer with management rank experience in internal affairs. 

· 2 Members from the public with experience working at nonprofit or academic institutions on issues related to police accountability. 

· 2 Members from the public with experience working at community-based organizations on issues related to police accountability. 

· 2 Members from the public, with strong consideration given to individuals who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer. 

· 1 Attorney with experience involving oversight of peace officers. 

Only the first two members can be current or former officers, which means that most of the people who will recommend pulling your certification have never been in a police uniform! 

However, the Advisory Board’s recommendation is just that, a recommendation. POST remains as the final decision maker as to whether your certification will be revoked. PORAC secured several last minute, crucial amendments. The amendments provide that the POST Commission must make its own determination based on the entire record and not just the Advisory Board’s recommendation. Moreover, the Advisory Board’s recommendation must be supported by clear and convincing evidence. Revocation also requires a 2/3 super majority vote of the POST Commission. PORAC also secured an amendment that requires the Advisory Board members to complete a 40-hour decertification training course, as developed by POST, which will minimally include the decertification process, internal investigations, evidentiary standards, use of force standards and training, and local disciplinary processes. 

SB 2 originally allowed the Advisory Board to retroactively substitute their judgment for prior determinations made at every level of the government and our court systems. The final version still allows the Advisory Board to reconsider past critical incidents in which an officer is cleared of serious misconduct, but significantly narrows the Advisory Board's retroactive jurisdiction to acts of dishonesty, sexual assault and certain deadly force applications.

The original bill also provided that the Advisory Board was not constrained by any prior adjudications or appeals of allegations of “serious misconduct.” The final version still includes this language but adds an important phrase providing that the legal principles of collateral estoppel will apply. This means that if there was a factual or legal adjudication on the merits clearing the officer in a prior proceeding, that finding will be binding on the POST Commission. 

Bane Civil Rights Act 

The Bane Act is a statute that was intended to address hate crimes by providing enhanced liability, such as attorney fees with Lodestar multipliers which can approach $1000.00/hr, for intentional violations of civil rights. Under the Bane Act, a Plaintiff must also prove the officer “intentionally interfered with or attempted to interfere with civil rights by threats, intimidation, or coercion.” SB 2 would replace this requirement with essentially a negligence standard, i.e., general intent to engage in the conduct without the intent to do anything wrongful. 

Although some legislators wanted to eliminate qualified immunity, they cannot because qualified immunity only apply to federal civil suits, e.g. 1983 actions.  Instead the bill eliminated 3 rarely claimed state law providing immunity. Federal qualified immunity remains.  More importantly, if an officer is sued for conduct arising from the course ans scope of their employment, the public entity must provide the officer a defense and indemnity. 

Conclusion

While the law enforcement community welcomes accountability and transparency, these goals cannot be accomplished by violating due process and creating an unfair, biased system designed to unfairly remove officers from their chosen profession. The struggle to retain basic due process and fairness for law enforcement is not over.  The POST Commission will be vested with authority to promulgate regulations clarifying the scope of this bill, including the right to representation during POST investigations.  The Legislature will also likely pass clean up legislation next session to clarify ambiguities and correct drafting errors.   Mastagni Holstedt, A.P.C. will continue working with PORAC and other California law enforcement stakeholders to protect the rights of officers statewide.

Courts Hand Victory to Public Pension Systems at the Expense of Public Employees

 In Wilmot v. Contra Costa County Employees' Retirement Assn. (2021) 60 Cal.App.5th 631, review denied (May 12, 2021), the California Court of Appeals for the Second District upheld the constitutionally of a portion of the Public Employees’ Pension Reform Act (PEPRA) that mandates the forfeiture of pension benefits if a public employee is convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” (Gov. Code § 7522.72.)

Jon Wilmot, an employee of the Contra Costa County Fire Protection District, submitted his paperwork for retirement in December 2012, prior to PEPRA taking effect on January 1, 2013. In April of 2013, the Contra Costa County Employees’ Retirement System (CCERA) officially approved his application for retirement. However, at some point, it was discovered that Wilmot had been stealing property and equipment from the Fire Protection District for over 13 years. Charges were filed against him in 2013, and he entered a no contest plea in 2015. As a result, CCERA reduced Wilmot’s monthly pension benefits in accordance with PEPRA’s forfeiture law.

In a scathing opinion, the Court of Appeal held that the forfeiture provision was both constitutional and was properly applied to Wilmot. First, Wilmot argued when PEPRA took effect in January 2013, he was no longer a “public employee” because he worked his final day and submitted his retirement paperwork in December 2012.  The Court of Appeal disagreed, stating that an employee’s retirement application is pending until approved by a retirement board. When PEPRA took effect, Wilmot’s application was submitted, but CCERA did not approve his application until April 2013.  Thus, he was subject to PEPRA’s forfeiture provision.

The Court also rejected Wilmot’s argument that PEPRA’s forfeiture provision violated the contract clause of the California Constitution. Citing to the California Supreme Court’s opinion in Alameda County Deputy Sheriff's Assn. v. Alameda County Employees’ Retirement Assn. (2020) 9 Cal.5th 1032 (Alameda), the Court acknowledged that to be constitutional, modifications of public pension plans must relate to the operation of the plan and intend to improve its function or adjust to changing conditions. Previously, Wilmot’s attorneys had unsuccessfully argued before the Second District Court of Appeals in Hipsher v. Los Angeles County Employees Retirement Assn. (2020) 58 Cal.App.5th 671 (Hipsher) that the forfeiture provision was an unconstitutional impairment of the contract clause. The Wilmot Court relied on the analysis in Alameda and Hipsher, stating that the primary objective in providing pensions to public employees is to “induce competent persons to enter and remain in public service.” Therefore, “withholding that inducement if an employee’s performance is not faithful” (such as Wilmont who pled guilty to embezzling County property) is an “entirely logical response” to improve the function of a public pension plan. The Court opined:  

An employee who draws public pay while stealing public property, or embezzling public funds, or who uses public facilities or equipment to run an illegal business (which is what occurred in Hipsher), is the antithesis of a ‘faithful’ servant of the public trust. When misconduct turns into outright criminality, it is beyond dispute that public service is not being faithfully performed. To give such a person a pension would further reward misconduct.

Finally, the Court rejected Wilmot’s claim that the forfeiture statute was an “ex post facto law.” The court determined that civil forfeiture of benefits earned while committing a job-related crime was not unlawfully punitive but rather was a proper “remedial civil measure.” 

Two California Courts of Appeal have now upheld the constitutionality of PEPRA’s forfeiture statute in light of the Supreme Court’s reasoning in Alameda. Given these rulings, plaintiffs and their attorneys should carefully consider whether additional challenges to PEPRA should be brought. Bringing such challenges may risk transforming gray areas into black letter law that benefits employers and harms public employees.

Citizen Initiative Proposes Unconstitutional Restrictions on Unions’ First Amendment Rights

On August 14, a new citizen initiative was filed with the California Attorney General’s Office. The “Elijah McClain Police Accountability Act” (Initiative) contains a wide variety of proposals ranging from eliminating qualified immunity to restricting the rights of law enforcement unions. Although a number of the proposals are problematic, unconstitutional, and impractical, this blog post focuses specifically on the provisions restricting the First Amendment rights of “police unions.”    

The Initiative inaccurately asserts that “police unions have limited legal rights, and certainly no right to influence politics.” With that assumption, it proposes that:

A police union shall be compelled to dissolve if it uses funds to impact an election or the actions of an elected official by:  

i.                                     Donating to a candidate or a candidate’s campaign, or;

ii.                                 Donating to a Political Action Committee {PAC) or any other individual, group, or entity who intends to use the money to influence an election or a candidate, or;

iii.                Buying advertising space for the purpose of promoting or denigrating a candidate, a public referendum, or a bill, or for the purpose of promoting the repeal or alteration of an existing law.

As an initial point, there are very few “police unions." Instead, most law enforcement organizations in California are employee associations recognized as the exclusive bargaining representative for sworn personnel in that police department. These associations are protected by the Meyers-Milias-Brown Act (MMBA), which was modeled after the National Labor Relations Act (NLRA) and grants collective bargaining rights to California’s local government employees. While these associations perform a wide variety of services for their members and the community, their main function is to collectively bargain on behalf of their members.

More importantly, the proposals in the Initiative would violate unions’ First Amendment rights. The U.S. Supreme Court held in Citizens United v. Federal Election Commission (2010) 558 U.S. 310 that corporations, including unions, have First Amendment rights. This includes the right to make campaign expenditures. Prohibiting unions from endorsing candidates and legislation or from contributing to campaigns is a clear violation of these First Amendment rights. Similarly, requiring unions to dissolve for engaging in First Amendment protected activity is unconstitutional.

While Mastagni Holstedt supports increased transparency in politics, violating unions’ First Amendment rights is not an appropriate or effective solution.