PHOENIX — Seeking to force the issue, a Southern Arizona lawmaker wants Attorney General Mark Brnovich to investigate whether parts of a new Tucson policy requiring workers to be vaccinated violates state law.
Sen. Vince Leach, R-Tucson, filed a complaint Thursday charging that the city is acting illegally, not in imposing the mandate but in refusing to grant a religious exemption to any worker who seeks one. He said that violates a law approved earlier this year.
That mirrors a letter that Anni Foster, legal counsel to Gov. Doug Ducey, sent a day earlier to city officials. She cited the same law that took effect on Sept. 29.
But Foster’s letter, by itself, has no legal effect. Leach told Capitol Media Services all it could do is lead to litigation, something he said could take months — or longer — to resolve.
So instead, Leach is using a statute lawmakers approved in 2016, known as SB 1487, giving them the power to demand that the attorney general investigate. That law requires Brnovich to come up with a conclusion within 30 days.
If Brnovich concludes the city action is contrary to state law, he is required to order the state treasurer to withhold certain revenue sharing dollars. For Tucson, that amounts to more than $100 million a year.
The city would have the right to contest that. But the case would go directly to the Arizona Supreme Court, bypassing the need for months of pretrial hearings.
Even a finding by Brnovich that the ordinance may violate the law triggers an automatic Supreme Court hearing — and a quick resolution.
Leach said getting the attorney general involved makes sense.
“I think that’s his responsibility,’’ he said, given that lawmakers set up the process under SB 1487 to demand such investigations.
Leach said he thinks the violation is clear.
In ordering its more than 4,000 employees to get vaccinated, the council did include exceptions for medical reasons. It also allows workers to “request’’ an exemption due to their “sincerely held religious beliefs.’’
But the Tucson policy in essence gives city officials the last word on whether to grant a request.
Leach said that’s contrary to the new state law that covers not just public entities but all workers.
That law starts with the trigger of an employee saying that his or her “sincerely held religious beliefs, practices or observances” prevent the employee from taking the COVID-19 vaccination. At that point, it says the employer “shall provide a reasonable accommodation’’ unless that “would pose an undue hardship and more than a de minimus cost to the operation of the employer’s business.’’
Nothing in the statute spells out what is a “reasonable accommodation’’ for someone’s religious belief. The federal Equal Employment Opportunity Commission has some examples, like changing someone’s work schedule. Other legal sources say that when the issue is something like the COVID vaccine, options include mask wearing, social distancing and remote working.
What’s wrong with the Tucson policy, Leach said, is that the city gets to decide whether a worker’s request for a religious exemption is based on that “sincerely held religious belief.’’
He said that, as far as Arizona law is concerned, once the worker makes the assertion, the city cannot question it. Leach said state legislators are entitled to make that the law.
He sidestepped the question of whether this law can be abused by someone who simply doesn’t want to be vaccinated, saying that could be said about other statutes. Leach is undeterred by questions about the fact that no leader of a major faith has said getting the vaccine violates any religious beliefs.
“This is a religious belief held internally by yourself,’’ he said.
City Attorney Mike Rankin, in a letter late Thursday to Foster, said she — and, by extension, Leach — are the ones legally wrong about the scope and reach of the law they are saying Tucson is violating.
“The subject matter of the statute — accommodations for ‘sincerely held religious beliefs’ — is already governed by federal law,’’ he wrote. “This new Arizona law really adds nothing to the obligations of Arizona employers who choose to require COVID-19 vaccination as a condition of employment.’’
Rankin pointed out that the city policy establishing a process for considering a request for a religious accommodation goes back to when the council first enacted a mandate in August, with workers given an Aug. 24 deadline to respond. That, he noted, was a full month before the effective date of the statute the city is being accused of violating.
In seeking intervention by Brnovich, Leach is not asking the attorney general to rule on the other part of Foster’s complaint: that the council action runs afoul of one of Ducey’s executive orders which Foster contends precludes local vaccine mandates. That’s because the 2016 law Leach is using to force action by Brnovich allows legislators to question only alleged violations of state law, not gubernatorial edicts.
Despite that, Rankin, in his response to Foster, said she is legally off-base on that claim, too.
“The governor has absolutely no legal authority to use an executive order to preempt or preclude the mayor and council’s exercise of their independent legislative authority under the Tucson Charter, the Arizona Constitution, or other Arizona law, to enact and enforce policies that they determine are necessary and appropriate to promote and protect the health and safety of city employees,’’ he wrote. Rankin, with a bit of a slap, told Foster that’s the legal advice he told council members.
“I would hope that, in your role as the governor’s general counsel, you have provided him the same advice regarding the limitations on his authority, since it is quite clearly the law,’’ he said.
Regardless, Leach’s complaint forces Brnovich to weigh in.
Brnovich, a Republican candidate for U.S. Senate, is hardly a blank slate on the issue of mandatory vaccinations.
He filed suit last month after the Biden administration announced it was going to alter worker safety rules to require vaccines of all employees with more than 100 employees, calling it “a power grab that has never been attempted by any administration in the history of our republic.’’