LA COUNTY FREE FOUNDATION–VACCINATION MANDATE UPDATE

2022 Oct 22Constitutional Litigation, Vaccine Mandate Litigation

Approximately one year ago, LA County Free Foundation organized and filed a lawsuit against Los Angeles County. Our express goal was to prevent enforcement of the County’s vaccination mandate against our members. Measured by that goal, and with help of others, our efforts are being successful.

To date, not one of our members has lost his or her job for not being vaccinated—nor do I see that happening.  To be sure, threats have been aplenty. But the plain fact is that all our unvaccinated members are still employed, which has been the ultimate goal of the litigation and related efforts.

GENERAL OBSERVATIONS

There are various contributing reasons for why all our members have remained employed, and unvaccinated, in spite of the vaccination mandate. Its always hard to see how things work behind the scenes, or to know how contributing factors inter-relate. But here’s my best effort to do that:

  1. The Covid threat has largely subsided, posing a much-diminished public health threat. The biggest success of our litigation, so far, has been to buy time against the vaccination mandate, to keep the vaccination mandate at bay while the public health threat subsided. That has worked.
  1. Our litigation has focused on the fact that Covid vaccines have been ineffective as against the Omicron strain of Covid. We pushed this point intensively earlier this year. While we were probably the first group to point out this problem with Omicron, generally accepted science has now caught up to that fact. Even with vaccine manufacturers creating vaccines to target Omicron strains, vaccines remain ineffective against Omicron, and scientific opinions now widely accept this fact. Therefore, public support for a vaccination mandate has dwindled. This has definitely worked in our favor.
  1. Everyone in LA County that wanted to be vaccinated has had many, many opportunities to do so. At some point, if a person doesn’t want to be vaccinated, a vaccination mandate against firefighters would seem to serve no purpose.  The County understands this reality.
  1. Because of these reasons, 1-3 above, the County, the Fire Department, and their lawyers, have maintained a cautious position with respect to pushing the vaccination mandate. Their caution has been realistic and admirable, and in keeping with the Covid pandemic wind-down that we see everywhere in the country.  I believe the County’s objective at this point is to maintain control over the employment relationships with firefighters and other employees, more so than actually pushing the vaccination mandate.  This is a reasonable expectation for an employer.
  1. And, of course, firefighters’ expectation is to to work without being vaccinated.
  1. Notwithstanding the inconclusive nature of the litigation we started a year ago (more on that below), both sides now have what we want most: firefighters are able to work without taking a vaccine and the County is able to maintain control over its employment policies; while the general public probably doesn’t care much one way or the other. In a vague way, this looks much like a win-win outcome that both sides should be happy with.

RELIGIOUS EXEMPTIONS

We estimate that 400 – 450 of our group have been granted a religious exemption from the vaccination mandate.  We have worked hard in this area on behalf of many, many individual members of LA County Free.  We also acknowledge that the 1014 union has also been instrumental in helping obtain religious exemptions for its members, many of whom are part of LA County Free. And the County, for its part, has been quite willing to grant religious exemptions, in most cases.  We had many exemption requests returned, but after re-working and re-submitting, almost every one went through.

Obviously, this large number of granted religious exemptions has been a great outcome.

SKELLY PROCEEDINGS

Thus far, we have had about 15 of our group receive a 5-day Skelly notice for not being vaccinated.  But the proposed discipline in each case was forfeiture of 5 days of employment (two shifts, for firefighters).  Of these 15, most opted to then file a religious exemption request, which stopped the Skelly proceedings.  Three of our members actually proceeded to the first Skelly phase. We represented these employees, and will represent all of our members who receive such a notice. We have received notice that discipline will be imposed in one of the three cases. The discipline is categorized as “minor”—5 days off work, which amounts to 2 shifts.

But make no mistake, if any of our members receives a Skelly notice where proposed discipline is termination of employment, we will attack that proceeding aggressively as a violation of fundamental due process rights under the Eighth Amendment’s prohibition against excessive fines. Any property forfeiture of expected employment and benefits, for non-compliance with the vaccination mandate, is far out of proportion with any penalty ever assessed in our Nation’s history for violation of a vaccination mandate; and the property forfeiture penalty far exceeds the reasonableness test under Jacobson with respect to measures required to protect the public. The support for this claim is Timbs v. Indiana, 139 S. Ct. 682, 203 L.Ed.2d 11 (2019), a very strong case for us.

For these reasons, if the County actually implements a Skelly proceeding where the proposed discipline is termination of employment, we will attack aggressively. But, in truth, I don’t see the County going that far.  I doubt the County would push that far because its possibility of losing is very real.

LITIGATION

Litigation, thus far, has been a never-ending war of skirmishes.  We had a definite victory in federal court earlier in the year, when Judge Scarsi recognized the first element of a privacy claim under the California Constitution and ruled that the other elements were mixed issues of law and fact that could only be resolved at an evidentiary hearing.  So, that was obviously good for us. But shortly thereafter, the US Supreme Court issued its abortion decision in Jackson Women’s Health v. Dobbs. Judge Scarsi then dismissed our federal claims on his own initiative, without allowing any briefing on the impact of Dobbs, and sent our case back to California Superior Court under state law. Importantly, he ruled that our “excessive fines” claim under the Eighth Amendment (discussed above) was premature, since no firefighter has actually received an actual threat of employment termination.

So our state law claims are back in Superior Court.  The County has noticed up a motion to dismiss for December 6, 2022—another round of skirmishing. Where this takes us is speculative, at this point. My own assessment is that we will have a difficult time getting a complete victory in any California court. In cases like this, it is difficult to ignore the connection between the judicial and political systems.  But if any of our members are actually threatened with employment termination, our path to the Supreme Court is a claim under the Eighth Amendment’s prohibition against excessive fines.  This is the fight I will take to the end, if we are pushed that far.

I appreciate the chance to represent you in this epic fight for individual privacy. Finally, as pointed out above, we started this fight to prevent the County’s vaccination mandate from forcing you all to become vaccinated.  And by that measure, our efforts have worked, so far.

Best regards to all,

Kevin McBride

About the Author

Kevin McBride is a Pension & Benefits Litigation Attorney in Los Angeles, California, USA.

He is admitted into three California US District Courts (Central, Southern, and Northern), the US District Court for the District of Utah, the Ninth Circuit Court of Appeals, and the Federal Circuit Court of Appeals. McBride holds a BA degree in Economics from the University of Utah and a JD from the University of Utah College of Law, where he served on the Utah Law Review. He is a member of the Federalist Society and the Federal Bar Association.