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More U.S. cops have died in the last year from COVID-19 than any other cause. But they’re still not getting vaccinated. In fact, they’re suing to avoid it.
As cities around the country have begun to mandate vaccinations, powerful unions like those in New York, Illinois, and Ohio say they’re ready to fight the policies in court—and some have already filed the paperwork. Law enforcement leaders aren’t necessarily against the vaccine but argue the mandates impede on officers’ right to make medical decisions for themselves, especially as members of unions are entitled to bargain for their conditions of employment. The law, however, may not be on their side; courts have already struck down some of the legal challenges, ultimately forcing officers to get the life-saving shot.
Patrick Lynch, the president of New York’s largest police union, the Police Benevolent Association, said he’s ready to file a lawsuit when the mayor’s vaccine mandate is set to take effect late this month. Right now, the NYPD’s vaccination rate is hovering at around 47 percent.
Chicago’s Fraternal Order of Police President John Catanzara also alluded to legal action in a bizarre statement to the Chicago Sun-Times.
“We’re in America, goddamn it,” Catanzara told the outlet. “We don’t want to be forced to do anything. Period. This ain’t Nazi fucking Germany.” (Nearly three-quarters of officers in Chicago weren’t vaccinated as of May.)
And cops in Wayne, New Jersey, briefly halted the police department’s mandate because of a lawsuit filed by the local union, but a state arbiter ruled this week that the township was within its right to enforce the mandate.
Since the start of the pandemic, COVID-19 has been the leading cause of death among law enforcement officers in the U.S. Earlier this month, the National Fraternal Order of Police reported that 537 of its members died after contracting the virus in the last year and a half, and police departments have recently reported record numbers of infections in their ranks. Still, many officers aren’t getting the vaccine over political beliefs and distrust.
Many of these unions aren’t against the vaccine itself. But they’re determined to protect their members' right to make their own medical decisions. Lynch, for example, successfully lobbied earlier this year to make the vaccine available to NYPD officers first. In Dayton, Ohio, where city workers are being asked to either get vaccinated by September 20 or be subject to weekly tests, the Fraternal Order of Police said it’s prepared to file a lawsuit against the city because it believes officers shouldn’t have to foot the bill for testing. In Tuscon, the Police Officers Association said the city’s mandate simply interferes with an officer’s “extremely complicated and deeply personal” decision over the vaccine, according to a Facebook post from last month.
Many of these unions will be suing on the basis that the National Labor Relation Act of 1935 clearly states that people represented by unions have a right to bargain for the terms and conditions of their employment, according to Merrick Rossein, a law professor at the City University of New York School of Law. But the labor rules governing vaccines are a bit different.
“Some of these unions are going to say, ‘You can't just impose this; you have to bargain and negotiate this with us,’” Rossein said. “And some of the cities might say, ‘Well, this is an emergency, so we don't have to do that. Or some cities may even bargain with the union but say ‘If you refuse, we're still gonna impose it.’ The states are on pretty strong grounds.”
In 1905, when smallpox was still a threat to the American public, the Supreme Court definitively decided that states have the authority to enforce vaccination laws as they see fit. The decision declared that a recently passed Cambridge, Massachusetts, law—which made turning down the vaccine a finable offense—was constitutional.
The case, Jacobson vs. Massachusetts, has already been cited in a U.S. Seventh Circuit Court of Appeals case earlier this month, Ryan Klaassen et al. vs. the University of Indiana, that challenged vaccine mandates. When eight students attending the University of Indiana filed a federal lawsuit against the school in June for mandating vaccines unless exempt for medical or religious reasons, the court decided that the institution was within its right to require vaccination against COVID-19 because of the rules established in the 1905 case.
For one, the university made an accommodating policy for those who don’t want to get vaccinated: regular testing and a mask mandate. The judge also ruled that the right of institutions of learning to enforce their own rules of safety is well established.
“Health exams and vaccinations against other diseases are common requirements of higher education,” the decision reads. “Vaccinations protect not only the vaccinated persons but also those who come in contact with them, and at a university, close contact is inevitable.”
A federal judge in Arizona last month struck down a legal challenge just days after the Tucson Police Officers Association filed a lawsuit over the county’s vaccine mandate. The judge ruled that while getting vaccinated is a personal choice, the union failed to show how the mandate harms employees without some sort of exemption.
But that doesn’t mean police union's attempts to take the issue to court are futile. If the courts can’t agree or officers appeal to the Supreme Court directly, the six conservative justices would likely jump at the chance to hear a lawsuit involving law enforcement personnel’s right to refuse the vaccine.
In the meantime, cities and departments have some other options for fighting the spread of the deadly respiratory disease, including the highly contagious Delta variant. In cities where a vast majority of its employees are vaccinated, shifting who faces the public or gets a desk job could be a viable middle ground. But for departments that have large numbers of unvaccinated personnel, that proves to be a bit trickier.
In San Francisco, for example, 160 of the 700 local sheriff’s deputies are unvaccinated, according to the union’s recent Facebook post. In Los Angeles, 48 percent of the city’s officers are not vaccinated.
“I think when you have not taken a vaccination, you limit yourself,” Atlanta Police Chief Rodney Bryant previously told VICE News. “It just sets your department back. You lose so much when you lack that person-to-person contact and interaction. And that’s how I think our profession really thrives.”