Prison personnel and certain incarcerated workers required to be inoculated
A federal judge has ordered all California prison employees entering a prison to be vaccinated against COVID-19 unless they have a medical or religious exemption. The order affects all prison workers, including correctional officers.
U.S. District Court Judge Jon Tigar’s Sept. 27 ruling also affects incarcerated people, such as firefighters, who work outside prisons, and those who want in-person visits.
Mandated vaccinations were requested by J. Clark Kelso, the court-appointed federal receiver with operational control over the system’s medical care. Kelso asked the judge to mandate vaccines for staff because voluntary vaccination of prison employees has failed, the Los Angeles Times reported.
“We really have a problem of continuing major outbreaks,” Kelso said in a virtual hearing held before Tigar in Oakland. The judge’s ruling noted that 48 outbreaks in prisons have been traced to prison staff from August to mid-September.
News reports said about 57% of California Department of Corrections and Rehabilitation staff is fully vaccinated. Among custody staff, the rate is about 42%. The rate varies by prison, with one facility as low as 18%.
CalMatters reported that “State officials have tried cash incentives, behavioral science strategies, even one-on-one counseling to entice more of them [prison staff] to get the shots. But most resistors didn’t budge
Although more than 5,000 staff attended the one-on-one counseling sessions, a mere 262 agreed to be vaccinated. Roughly 4,300 others signed a statement of refusal.”
A correctional officer at the California Rehabilitation Center in Norco told CalMatters, “A lot of us have already had COVID and recovered, so we don’t see the point in getting the vaccine.”
According to a San Francisco Chronicle article dated Sept. 28, “Tigar wrote that allowing prison employees to be unvaccinated … violated prisoners’ Eighth Amendment constitutional rights. No one disputes … that staff is the primary vector for the introduction of the virus into vulnerable prison settings.
“Defendants are aware of a substantial risk … to incarcerated persons, and, although they have taken many commendable steps … they have nonetheless failed to … do what the undisputed evidence requires.
“All agree that a mandatory staff vaccination policy would lower the risk of preventable death and serious medical consequences among incarcerated persons. And no one has identified any remedy that will produce anything close to the same benefit.”
The California Correctional Peace Officers Association has resisted a vaccine mandate. “We’ve undertaken an aggressive, voluntary vaccination program and we still believe the voluntary approach is the best way forward,” said President Glen Stanley.
The guards union warned that if members refuse to be vaccinated, prisons could face staff shortages. But Rita
Lomio, Prison Law Office attorney, said the union was using “scare tactics” by implying that the mandate would result in understaffed prisons, noting that the federal prison system and six other states are operating their systems under vaccine mandates.
“We are looking into our legal options to address this order,” said a union statement. But Lomio doubted that the union has grounds to contest the order because there is “such a clear factual and legal basis for it.”
Gov. Gavin Newsom backs the union, which contributed $1.75 million to his defense against the September recall election. The Service Employees International Union, with about 12,000 members working in the state’s prisons, also contributed $5.5 million to the anti-recall campaign, said the Times. “We have no further announcement to make as it relates to whether or not we’re going to mandate those vaccines,” Newsom said.
The Times interviewed attorney Don Specter, Executive Director of the non-profit Prison Law Office, who said of the governor’s support of the union: “The guards are mostly the source of infection,” yet Newsom is resisting mandatory vaccinations. “Well, the guards and other unions for those in the prisons carry considerable influence. You just have to look at the donations.”
Guards union lawyers say that the solution lies not with prison staff, but with the 22% of the system’s prisoners who have declined the vaccine. About 76% of California’s incarcerated have been vaccinated. Almost all have been offered the vaccine.
But in his order, Tigar noted that it is not just the unvaccinated among the incarcerated population that is at risk for COVID-19, but the vaccinated population as well. As of Sept. 1, 2021, 385 fully vaccinated people in CDCR custody have suffered breakthrough COVID-19 infections.
Kelso and CDCR jointly submitted a proposed vaccination plan on Oct. 12. The plan called for all affected individuals to be fully vaccinated by Nov. 29, 2021. How- ever, CDCR subsequently withdrew its commitment to the date and as of this report no date has been established for full implementation.
Affected individuals can submit a request for accommodation to be exempted from the vaccination requirement for “sincerely-held religious belief,” or for “qualifying medical reasons,” according to the joint response.
If a request for accommodation is denied, the individual would then have 10 days to commence the vaccination process.
Once a full implementation deadline has been decided, earlier deadlines will be established for; submitting requests for accommodation to be exempted from the vaccination, for first doses of two-dose vaccines, and for second doses of two-dose vaccines or a single dose of the Johnson & Johnson vaccine.
Individuals affected by the order that are neither fully vaccinated nor exempted from the vaccination by the full implementation date will be subject to the following:
- Affected incarcerated people will receive “vaccine counseling” at that point. Then, if not in compliance within 14 days, they would lose eligibility for their out- side job assignment and for in-person visits.
- Affected prison staff (not including health care registry, contract, or volunteer workers) would become subject to progressive discipline.
- Affected health care registry, contract, or volunteer workers may have their assignments ended.