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Monday, September 13, 2021

Compassionate Enforcement: Cities Must Balance Public Services With Public Order To Reduce Homelessness


Permissive policies have fostered the formation of homeless encampments in Los Angeles and

Compassionate Enforcement

Cities must balance public services with public order to reduce homelessness.
by Christopher Rufo, City Journal, Summer 2021

Fifteen years ago, West Coast cities were confident that they could solve homelessness. In coordination with state and federal governments, cities throughout the region established high-profile commissions and released ambitious ten-year plans to end the problem. Seattle mayor Greg Nickels declared that homelessness would become a “rare, brief, and one-time” event; Los Angeles mayor James Hahn announced a plan to “move people off the street and into places they can call their own”; and San Francisco mayor Gavin Newsom promised “not to manage but to end homelessness,” praising his city’s plan as “brilliant in its simplicity.”

Armed with the latest academic studies on the success of “Housing First,” a program that provides long-term apartments to the homeless, experts argued that cities could simultaneously end homelessness and save taxpayers money. Philip Mangano, executive director of the U.S. Interagency Council on Homelessness, summarized the prevailing mood: “Five years ago the notion of cities having 10-year plans to end homelessness was naïve and risky. No one thought it was possible. But the new research and new technologies have created such movement and innovation on this issue that it may now be naïve and risky not to have such a plan.”

These ambitions proved delusions. Hahn’s plan to end homelessness in Los Angeles collapsed before it began, Newsom watched homelessness expand in San Francisco and then statewide, and Nickels has been immortalized in a series of tent cities now called “Nickelsvilles.” In nearly every major West Coast city, homelessness is worse than ever—tents line the sidewalks, and some downtown neighborhoods have turned into Brazilian-style favelas, with open-air drug markets and booming black-market economies.

The new conventional wisdom is pessimistic: homelessness is an intractable feature of the urban landscape. Political leaders have abandoned any pretension of “abolishing homelessness,” focusing instead on strategies of containment and “harm reduction.” But this outlook, too, is wrong. Homelessness is neither intractable nor permanent, and policies of harm reduction have shown little capacity to reduce it. Rather than continue down this path, West Coast officials should learn from cities that have embraced a different model—compassionate enforcement—that has demonstrated significant success over the past decade. Though West Coast cities have dominated the headlines with bad news, cities such as Houston, which has reduced homelessness by more than 50 percent since 2011, show that another way is possible.

Various misconceptions have kept major cities from reducing homelessness. A prevailing view holds that homelessness is a national problem; many service providers, local officials, and state governors have insisted that the federal government is responsible for solving it. This contention serves the dual purpose of shifting blame to Washington and obscuring the failure of the political class in West Coast cities, but it is false. Between 2009 and 2019, homelessness decreased 10 percent nationwide; moreover, on a geographic basis, homelessness declined in 40 out of 50 states. The reality is that homelessness is not distributed evenly across the country. It has become more concentrated in a handful of states, particularly California, Oregon, and Washington, which now account for one-third of the nation’s homeless population.

Why? Activists and political leaders commonly point to weather and rising rents. Though it’s obviously easier to live on the streets in Los Angeles than in Chicago during a long winter, weather alone does not explain the distribution of homelessness in the United States. As the Council of Economic Advisers has shown, the rate of homelessness is high in California cities but low in Florida cities, which also have warm winter climates. Overall, according to CEA analysis, unsheltered homelessness is two to four times higher than predicted when accounting for weather in California, Washington, and Oregon, and lower than predicted when accounting for weather in Florida, Arizona, Tennessee, Louisiana, and Mississippi.

The more deeply entrenched argument is that homelessness is a housing problem. Progressive leaders in West Coast cities have convinced the public that rising rents cause homelessness. There is a beguiling simplicity to this narrative: marginalized people are living paycheck to paycheck, the rent goes up—and they’re thrown onto the streets. The officials often cite in support of this claim a Zillow report that purports to show that “rising rents mean [a] larger homeless population.” In the report’s headline, the researchers find a strong correlation between increases in rental prices and homelessness in Los Angeles, San Francisco, Seattle, New York, and Washington, D.C. However, buried in the same report, the research shows that homelessness remained flat or decreased, despite rising rents, in Boston, Miami, Dallas, Minneapolis, Philadelphia, Denver, Sacramento, Pittsburgh, Chicago, San Diego, Phoenix, St. Louis, Portland, Detroit, Baltimore, Atlanta, Charlotte, Houston, Riverside, and Tampa. Put another way, rising rents and homelessness are correlated in five of the top 25 metros but not correlated in 20 of the top 25 metros—undermining the conclusion that rising rents cause homelessness.

To avoid misunderstanding, let’s concede this much: it is certainly true that weather and housing prices have some effect on homelessness. Warm weather allows for year-round unsheltered living, and expensive real-estate markets raise the economic floor for avoiding homelessness—it’s much easier to maintain housing where the rent is $300 a month, not $3,000. But these explanations go only so far.

Public policy is a better explanation for the current distribution of homelessness in the United States. Researchers mostly have analyzed homelessness according to middle-class norms, believing that the homeless respond primarily to measures of poverty, rental prices, and housing policy. That overlooks an important distinction: the homeless have a different set of incentives from the average citizen. Their world is not like that of the middle class. The facts, which have become taboo in progressive cities, are simple: 75 percent of the unsheltered homeless have a serious addiction, 78 percent have a mental illness, and, as a group, they are nearly 100 times more likely to commit crimes and get booked into jail than the typical citizen. Theirs is a world of tangled pathologies, driven by the economics of the drug trade, the psychology of addiction, and the culture of transient encampments.

And yet, notwithstanding their high rates of addiction and mental illness, the homeless are essentially rational actors in the sense that, on their own terms, they respond to economic, policy, and cultural incentives. Consider one situation that illustrates the larger point. The Venice Boulevard underpass on the border of Los Angeles and Culver City is one of thousands of concrete structures in Los Angeles County, but its Los Angeles side has been seen full of tents, while its Culver City side was empty. Why? As neighboring cities, Los Angeles and Culver City have the same regional economy, climate, and rental prices—in fact, Culver City is slightly more expensive than Los Angeles. The difference is public policy. Los Angeles has effectively decriminalized public camping and drug consumption; Culver City enforces the law against them. After two Los Angeles city councilmen complained in the Los Angeles Times that Culver City was pushing its homeless into L.A., then–Culver City mayor Jeffrey Cooper shot back in a letter to the editor: “The encampment under the 405 Freeway on Venice Boulevard . . . has been the scene of numerous violent crimes. The Los Angeles Police Department does not check in with the homeless people living there nearly as often as Culver City police do. If I was a homeless person inclined to do drugs and commit crimes, I would feel safer in Los Angeles than Culver City, whose police are there to protect all residents.”

The Venice Boulevard experiment provides a useful framework for reexamining the geography of homelessness. In California, the data are consistent with the enforcement principle: across the state, the homeless gravitate to the most permissive policy environments. In Los Angeles County, 35 percent of the homeless migrated to the county after becoming homeless elsewhere, including 19 percent who came from another state. In San Francisco County, 30 percent of the homeless came to the county after becoming homeless elsewhere, plus an additional 6 percent who became homeless after living in San Francisco for less than a year. The San Francisco Chronicle estimates that 450 chronically homeless individuals migrate to the city each year because of the “perception that it is a sanctuary for people who are unwilling to participate in programs designed to get them off, and keep them off, a life in the streets.”

In Washington State, the numbers from the Seattle metropolitan area provide more evidence for the enforcement hypothesis. According to data from the City of Seattle, an astonishing 51 percent of the homeless migrated to the city after becoming homeless somewhere else. By the conventional wisdom’s middle-class logic, this would be an irrational choice: an individual with no shelter or stable source of income would not move to one of the nation’s most expensive cities. But again, the homeless operate under a different set of assumptions and incentives. They are strongly motivated to move to the most permissive environment. In a research survey of homeless migrants to Seattle, 15 percent said that they came to access homeless services, 10 percent came for legal marijuana, and 16 percent were transients who were “traveling or visiting” when they decided to set up camp. These responses may obscure the largest incentive of all: the de facto legalization of street camping, drug consumption, and property crime. As former Seattle public safety advisor, Scott Lindsay has shown, the city is now home to a large population of homeless “prolific offenders” who commit property crimes to feed their addictions—and are rarely held to account by the criminal justice system.

Some critics will dismiss these conclusions as an endorsement of an “enforcement-only” approach that “criminalizes homelessness.” But the lesson is not that cities should withhold help from the homeless; it’s that cities must balance the provision of public services with the maintenance of public order. Cities that fail to acknowledge the relationship between permissiveness, migration, and rates of homelessness will not make progress.

Houston is perhaps the American city that best demonstrates the power of “compassionate enforcement.” Its Harris County is a moderate district, with conservative suburban areas and a liberal urban core. Houston’s mayor, Sylvester Turner, is a Democrat, but his rhetoric on homelessness is very different from that heard in Los Angeles, San Francisco, and Seattle. “It is simply not acceptable for people to live on the streets; it is not good for them, and it is not good for the city,” Turner has declared. “We will tackle this complicated issue, and we will do it humanely with a meaningful approach that balances the needs of the homeless and the concerns of neighborhoods they impact.”

Houston’s policy exemplifies what Turner calls a “tough love” approach. The city has built permanent supportive housing for the chronically homeless, cobbled together a coalition of nonprofit partners, and lobbied the state government for more mental health and addiction services. At the same time, Turner has enforced a strict ban on public camping and proposed a citywide campaign to discourage citizens from giving money to panhandlers. The Harris County sheriff’s homeless outreach team attempts to connect the homeless with services but also enforces the law. The sheriff’s office acknowledges that “mental illness and substance abuse are common in [the homeless] population” and recognizes that it must maintain order in residential neighborhoods. The team shuts down tent cities and conducts regular cleanups, discouraging the permanent encampment culture seen in West Coast cities. The results have been stunning: between 2011 and 2019, Houston reduced its homeless population by 54 percent.

These outcomes lay waste to the conventional wisdom. Houston has warmer winters than Seattle, Portland, Sacramento, and San Jose. During the same period that Houston reduced homelessness by more than half, the average rent for a one-bedroom apartment rose by 54 percent. Clearly, neither the weather nor housing prices can explain the outcomes in Houston.

Some analysts have suggested that Houston’s approach worked because the city built permanent supportive housing, created a coalition of partners, and implemented advanced data-tracking. But every major West Coast city has done these things. Seattle, San Francisco, and Los Angeles have also spent billions on permanent supportive housing and subsidized apartments, hosted conferences and working groups to increase coordination, and implemented the same Homeless Management Information System as Houston. And yet, over the same period, homelessness increased 15 percent in Los Angeles, 24 percent in San Francisco, and 25 percent in Seattle. If these interventions worked in Houston, why didn’t they work elsewhere?

The truth is straightforward. Houston achieved different results because, in addition to these supportive policies, it also enforced the law. Unlike the West Coast cities, Houston did not enable and encourage the worst aspects of street homelessness. Where a Seattle politician opposes hosing down feces-covered sidewalks because hoses supposedly have racist connotations, Houston fights in the courts for the right to clean up encampments. Where California leaders push for supervised injection sites and decriminalizing thefts under $950, Houston pushes for tighter restrictions on aggressive panhandling, windshield washing, and other “street obstructions.”

Political culture currently prevents West Coast cities from implementing the same policies as Houston. As social scientist Jonathan Haidt observes in a study co-authored with Jesse Graham and Brian A. Nosek, liberals and conservatives operate on different moral foundations. Liberals base their views primarily on the values of care and fairness—that is, they value compassion above other concerns. Conservatives, on the other hand, “construct moral systems more evenly upon five psychological foundations,” showing concern not only for care and fairness but also authority, purity (in the sense of cleanliness and control of impulses), and in-group loyalty (the obligations one has as a member of a group or society).

Haidt’s theory helps illustrate why progressive cities have been unable to reduce homelessness, despite billions in public spending. Progressives, according to Haidt, have an “unconstrained vision” of the world and “an optimistic view of human nature and of human perfectibility.” They tend to believe that the homeless are victims of circumstance and inequality and simply need a helping hand to improve their lives.

This understanding has three moral blind spots. First, because progressives discount the moral foundation of authority, they dismiss worries about crime, disorder, and violence when thinking about homelessness and generally are skeptical about the need for law enforcement. West Coast progressives have sought to decriminalize public camping, drug consumption, and property crimes because they view authority as the problem, not part of the solution. Second, because progressives discount the moral foundation of purity, they overlook and excuse the filth associated with street camping. Homeless encampments have proved to be havens for trash, needles, drugs, human waste, and infectious diseases, yet West Coast progressives have fought to “stop the sweeps” of tent cities and filed lawsuits against encampment cleanups. They prioritize “care for our curbside neighbors” over sanitation, cleanliness, and public-health concerns. Third, because progressives discount in-group loyalty, they do not see a significant homeless influx as a problem. They tend to make no distinction between the local and nonlocal homeless population and reject concerns about cities becoming magnets for homeless migrants as “xenophobic” and “homeless-hating.” Put simply, progressive cities have adopted a philosophy of all compassion and no enforcement that creates a cycle of permissiveness, enablement, and disorder.

Critics might deny that the progressive approach is extreme, pointing to outreach teams as examples of authority, sanitation plans as examples of purity, and bus programs as examples of in-group loyalty. But at the practical level, the homeless-services apparatus has become one of the most ideologically radical sectors of West Coast government. In Seattle, the regional homelessness authority recently held its annual conference on the theme “Decolonizing Our Collective Work,” with sessions designed to “[interrogate] the current structures of power” and “examine the legacies of structural racism in our systems, and co-design a path towards liberation with black, indigenous, brown and other marginalized communities.” As part of the conference, the agency hired transgender stripper Beyoncé Black St. James to perform a drag show, give lap dances, and kiss attendees. What does any of this have to do with reducing homelessness? Nothing. It’s about repeating the nostrums of social justice, radicalizing homeless services providers, and advancing the larger progressive political project. Of course, these agencies have failed to reduce homelessness; any entity that prioritizes “decolonizing our collective work” over actually improving things is doomed to fail.

Policies can change quickly, but ideologies have deeper roots. In the near term, there will likely be a continued redistribution of homelessness toward the warmest, most expensive, and most permissive cities, focused primarily on the coastal enclaves of California, Oregon, and Washington. West Coast cities have recently announced unprecedented multibillion-dollar expenditures on homelessness, but money alone cannot overcome deficient political cultures that have proved unable to cope with the dark side of homelessness: addiction, crime, violence, squalor, and disease. If the homeless-services apparatus continues to prioritize political convictions over practical plans, it will waste billions on programs that fail to address the need for both compassion and enforcement.

The crisis presents an opportunity, however, for cities willing to try a different approach. As Houston has demonstrated, local leaders can meaningfully reduce homelessness through a strategy of tough love—leading with the provision of shelter and services but maintaining public order through outreach, cleanups, and enforcement of anti-camping laws. Some progressive leaders have complained that enforcement policies shift the burden of homelessness onto the largest cities. But Houston is the nation’s fourth-largest city. And cities already compete on taxes, infrastructure, amenities, and various other policy choices—why should homeless policy not be among them? Small and medium-sized cities should not lower their standards of public order; rather, it is incumbent upon neighboring cities to reduce the “magnet effect” of their own permissive policies.

In the long term, it would be best for all cities to adopt compassionate enforcement. If cities can close down negative pathways—public encampments, open drug consumption, and uncontrolled property crimes—they will be able to redirect the homeless toward better outcomes. In cities such as Los Angeles, San Francisco, and Seattle, political leaders must reorient their policies and think more broadly about the moral dimension of homelessness.

More than 180,000 people live on the streets of West Coast cities. Their fate depends, in part, on policymakers. Ultimately, compassion should be measured not by good intentions but by outcomes. If progressive leaders want to live up to their own values, they must demonstrate results on homelessness. Houston provides a model of how to do so.

Friday, September 10, 2021

The State of California Refuses To Disclose All State Spending


LOS ANGELES, CA - NOVEMBER 06: Democratic gubernatorial candidate Gavin Newsom 

speaks during election night event on November 6, 2018 in Los Angeles, California. Newsom defeated Republican Gubernatorial candidate John Cox. (Photo by Kevork Djansezian/Getty Images)


How California’s Lack Of Transparency Could Flip The U.S. Senate

Adam Andrzejewski

Polls show that government corruption, waste and malfeasance are important issues to California voters.

But California is the only state refusing to disclose all state spending. Forty-nine states produced their line-by-line vendor payments after auditors at submitted open-records requests.

It’s a basic issue of accountability. The people, press, and politicians must be able to follow their tax dollars. After all, it’s their money.

In 2020, we sued California Controller Betty Yee, a Democrat, in state court after she argued that her office couldn’t “locate” any of the 50 million payments that the state admitted making last year. Our lawyers are the public-interest law firm in Washington, D.C., Cause of Action Institute.

In a court filing this month, Yee argued that our organization seeks “…a ‘checkbook’ of California’s spending, such a checkbook does not exist…”

In 2012, Illinois Comptroller Judy Baar-Topinka, a Republican, made a similar argument after denying our sunshine request: “The state doesn’t have a ‘magical’ checkbook.” We sued Illinois reminding her that the state didn’t have magical taxpayers either, and won.

So, why hasn’t a Gov. Gavin Newsom challenger incorporated this good government, non-partisan issue in the recall election cycle? After all, a governor – even the current governor himself – could solve the state’s lack of transparency through an executive order.

Today, such questions have national implications.

Consider this: U.S. Senator Dianne Feinstein (D-CA) is 88 years old. If she dies in office or resigns her seat, the governor appoints her successor. If that governor is a Republican, then the balance of power in the U.S. Senate would flip away from the slim 50-50 Democratic majority that comes with Vice President Kamala Harris making the tie-breaking vote.

It would certainly seem that the stakes are high in California. The issue of transparency can turn the ‘Golden State’ into an election battleground.

Here are five arguments from Controller Yee to a California judge regarding her refusal to produce a single transaction subject to our open records request for state spending:

1. Certain records are stored on paper and magnetic tape. Magnetic tape? Paper? Are we in 1951 when magnetic tape replaced… punch cards?! Magnetic tape was invented in 1928 in Germany according to Wikipedia. Papermaking was finally brought to Europe in the 11th Century.

California is home to Silicon Valley and the electronic, technology revolution!

2. Can’t “locate” the records. Mystifying, after admitting that records are stored on paper, magnetic tape, and other media. Furthermore, Yee disclosed making 50 million payments from her office.

From the Controller brief: “Respondents cannot produce records that are not in its possession.” “Petitioners’ attempt to obtain a record that does not exist…” Yee argued, “… the request at first may appear to be reasonable and specific – but when assessed in light of the limitations of and scope of documents possessed by the Respondent, the request is not reasonable…”

Really? The state’s top fiscal officer doesn’t have access to the state payment records when she has a constitutional responsibility to attest that the payments are free of waste, fraud, corruption and taxpayer abuse?

From the Controller’s website: Under the State Constitution, the Controller is charged with the audit of every claim for payment of state and federal funds prior to the expenditure of funds. (emphasis added)

3. Yee called the checkbook spending a limited public interest, in her court filings. Yet, it’s arguably the most important public record in the state – exactly where taxpayer money was spent and who received it. Yee, herself, is acting like she has a lot to hide.

4. The request lacked clarity. Feigned ignorance – here is what we requested: check date, check amount, payee/vendor name, payee/vendor address, check number, check amount, description of services, organization/ agency identifier number, purpose of payment, department agency, type of payment (i.e. contract, grant, etc.).

In fact, over 300 cities and municipal governments in California – and 11,100 governments across America – already produce records under the request. They can figure it out.

In a nutshell, Yee is arguing that her office is so incompetent that they can’t produce the basic financial record of who received how much taxpayer money.

Even the most corrupt governments across America comply with the OpenTheBooks sunshine request for payments, including the Port Authority of New York and New Jersey. It seems everyone except California can figure it out.

5. The request is an “undue burden.” “The information sought would require an extraordinary effort to locate and produce… The [California Public Records Act} does not compel an agency to produce records which cannot be located with a reasonable effort.”

Undue burden? It’s her job. Anyone that makes the payment can track the payment.

Are you beginning to think that the entire California state payment system is designed to hide waste, fraud, corruption and taxpayer abuse?

In 2018, the Wyoming State Auditor Cynthia Cloud, a Republican, argued that producing the state checkbook would take “years and years.” After we sued, Cloud’s successor, Kristi Racines produced six years of state spending within 30-days on the job!

All of these positions are embarrassing for California. None of the excuses would seem reasonable to a voter. The issue would resonate with regular people.

Challengers to Gov. Newsom could look to the 2018 insurgent gubernatorial candidate in Wyoming, Foster Friess – who went from 1% in the polls to nearly winning the Republican nomination– in months. His entire platform was to open the books on state spending.

Every state across America can produce a complete checkbook of public expenditures. Are we just dreamin’ to believe that California can produce a full record too?

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Sunday, September 5, 2021

A National Question: Can employers make COVID-19 vaccination mandatory?


Can employers make COVID-19 vaccination mandatory?
by Mae Anderson, May 27, 2021
Yes, with some exceptions.

Experts say U.S. employers can require employees to take safety measures, including vaccination. That doesn’t necessarily mean you would get fired if you refuse, but you might need to sign a waiver or agree to work under specific conditions to limit any risk you might pose to yourself or others.

“Employers generally have wide scope” to make rules for the workplace, said Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law. “It’s their business.”

Rules will vary by country. But the U.S. Equal Employment Opportunity Commission has allowed companies to mandate the flu and other vaccines, and has indicated they can require COVID-19 vaccines.

There are exceptions. For example, people can request exemptions for medical or religious reasons. Some states have proposed laws that restrict mandating the vaccines because of their “emergency use” status, but that may become less of an issue since Pfizer has applied for full approval and others are likely to follow.

How employers approach the issue will vary. Many might not want to require vaccination because of the administrative burden of tracking compliance and managing exemption requests, noted Michelle S. Strowhiro, an employment adviser and lawyer at McDermott Will & Emery. Legal claims could also arise.

As a result, many employers will likely strongly encourage vaccination without making it mandatory, Strowhiro said.

Walmart, for example, is offering a $75 bonus for employees who provide proof they were vaccinated.

Can Employers Make COVID-19 Vaccinations Mandatory?

National Law Review, Monday, August 2, 2021

Now that the vaccines for COVID-19 are widely available in the United States, many schools are preparing for in-person instruction in the fall and more workplaces are starting to move away from remote work and bring their employees back into the office. Of course, many essential workers have remained in their workplaces throughout the pandemic. In order to protect their employees and customers from the pandemic virus, many employers in both the public and private sectors are requiring employees to get vaccinated before returning to work or as a condition of remaining at work. New York City has announced that all government employees need to get vaccinated by September 13, 2021, or else be subject to weekly COVID-19 testing. President Biden announced a similar mandate – vaccine or testing – for federal government employees and contractors on July 29, 2021. The proliferation of employer vaccine mandates across the country has spawned a number of legal challenges by employees who want to keep their jobs but do not want to get vaccinated, and by unions who do not think such changes should be implemented unilaterally by employers. This blog explores some of the legal issues that federal and state courts will be addressing as these cases proceed.

Claims based on right to refuse “unapproved” COVID-19 vaccines

Plaintiffs in several lawsuits have argued – thus far unsuccessfully – that employers cannot impose vaccine mandates because the COVID-19 vaccines have only received Emergency Use Authorizations from the Food and Drug Administration, thus rendering the vaccines “unapproved” and “experimental.” Employees at Houston Methodist Hospital in Texas (Bridges v. Houston Methodist Hospital), Dona Ana Detention Center in New Mexico (Legaretta v. Macias), and Los Angeles County schools in California (California Educators for Medical Freedom v. Los Angeles Unified School District) have all argued that their employers’ requirements that they get the COVID-19 vaccine or face termination amounts to compelling them to participate in a medical experiment in violation of their rights under federal law.

Plaintiffs in all three cases point to 21 U.S.C. § 360bbb-3, a law governing the Secretary of Health and Human Services’ ability to grant Emergency Use Authorization to drugs or medical devices that have not received full approval from the FDA. The law says that the HHS Secretary must establish conditions to ensure that anyone who administers a product under an Emergency Use Authorization must inform patients “of the option to accept or refuse administration of the product, [and] of the consequences, if any of refusing administration of the product,” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). The plaintiffs claim that this law gives them a right under federal law to refuse the vaccine, and that any employer mandate to the contrary is unenforceable. Some of the plaintiffs point to other sources of law to claim a right to refuse vaccination. For instance, the New Mexico plaintiffs pointed to Griswold v. Connecticut and Roe v. Wade, two famous Supreme Court cases holding that the constitution recognizes a right to privacy that encompasses access to contraception and abortion. They argue that this same right prohibits the Dona Ana Detention Center from terminating their employment if they refuse the vaccine. The California and Texas plaintiffs pointed to the Nuremberg Code of 1947, international laws adopted in the wake of the Holocaust that prohibit forced medical experimentation without informed consent. The plaintiffs basically have argued that the employers’ vaccine mandates are tantamount to the horrifying medical experiments conducted by Nazi doctors on concentration camp prisoners.

There is little chance that these arguments will be met with any sympathy by courts. Contrary to the claims of the plaintiffs, the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission both recognize that federal law does not prevent employers from imposing vaccine mandates. The CDC website says: “The Food and Drug Administration (FDA) does not mandate vaccination. However, whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Similarly, the EEOC says that “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” so long as employers allow for legally required reasonable accommodations for employees with disabilities or religious beliefs that do not allow for vaccinations. Furthermore, the Supreme Court first held more than 100 years ago, in its 1905 decision in Jacobson v. Massachusetts upholding a state law requiring smallpox vaccination, that the Constitution does not provide a right to opt-out of vaccine mandates in the midst of a public health crisis. Accordingly, lower courts are unlikely to hold that there is a constitutional right to opt-out of employer vaccine mandates in the midst of the COVID-19 pandemic.

The only court to weigh in on one of these cases has shown no patience for these arguments. On June 12, 2021, the United States District Court for the Southern District of Texas dismissed all of the claims brought against Houston Methodist Hospital, bluntly stating that the plaintiffs’ efforts to portray themselves as unwilling participants in medical experiments misstate the facts, and that any analogy to Nazi experimentation in concentration camps is “reprehensible.” Looking at Section 360bbb-3, the Court held that the statute only regulates the conduct of the HHS Secretary and does not create any rights that a private individual can enforce in a lawsuit. Furthermore, the Court noted that none of the plaintiffs are actually being coerced into taking the vaccine. Rather, the Hospital gave them the option to refuse the vaccine and told them the consequence of their refusal, namely, that they would be terminated from their job. “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”
Claims based on religious and disability discrimination

Even though employees will likely not be able to show that employer vaccine mandates violate federal law, particular employees may be able to show that they have a right to opt-out of an employer vaccine mandate based on their religious beliefs or medical conditions. For example, in Coronado v. Great Performances Artists As Waitress Inc., Antonio Coronado, a service worker, brought claims under the New York State and New York City Human Rights Laws in state court, claiming his employers’ decision to place him on furlough until he got vaccinated violated his “religious and ethical convictions” and discriminated against him “based upon his physical condition.” There are likely to be similar lawsuits brought by employees all over the country under federal, state, and local anti-discrimination laws. Although the court has not yet weighed in on Mr. Coronado’s complaint, the EEOC has provided guidance that will help show how such claims are likely to fair under the federal laws prohibiting employment discrimination on the basis of religion, Title VII of the Civil Rights Act of 1964, and disability, the Americans with Disabilities Act. Check out our blog post, “COVID-19 Vaccinations: What Employees and Employers Need to Know” to learn more.
Other vaccine mandate developments to come

Although most vaccine mandate litigation is focused on federal law concerning Emergency Use Authorization and anti-discrimination law, some opponents to vaccine mandates are taking other approaches. For instance, a case filed in the United States Court for the Northern District of Illinois argues that the employer’s imposition of a vaccine mandate – even one that allows accommodations for employees’ religious beliefs and disabilities – alters the terms and conditions of employment in violation of Collective Bargaining Agreements entered into by the plaintiff-union. See International Brotherhood of Teamsters, Local 743 v. Central States, Southeast and Southwest Areas Health and Welfare Pension Fund. This claim sidesteps any argument about the vaccine approval process as well as the employer’s legitimate interest in promoting workplace safety. Instead, the claim characterizes the employer’s vaccine mandate, which requires unvaccinated employees to use all of their paid time off and then face discipline (up to and including termination) unless and until they get vaccinated, as imposing a new restriction on the union members’ employment without going through the negotiation process required by the agreements and federal law protecting union rights. For instance, the National Labor Relations Act requires an employer to collectively bargain in good faith with the union over subjects that directly impact “rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. §§ 158(a)(5); 159(a). The Teamsters Union argued that the employer’s unilateral imposition of the vaccine mandate creates a new “condition of employment,” and requirements on how employees must use their paid time off unlawfully circumvented the mandatory bargaining process. It remains to be seen how the court will handle this claim, but other unions with members opposing vaccine mandates are likely to bring similar claims if the Teamsters Union has any success here.

Some state legislators opposed to vaccine mandates are circumventing courts altogether and are proposing state laws that outright prohibit COVID-19 vaccine mandates. While many such laws are still under consideration, two states have successfully enacted laws curtailing employers’ ability to require their employees to get vaccinated. On April 28, 2021, Arkansas enacted Act 977, which prohibits any state or local agency or entity from requiring a COVID-19 vaccine as a condition of employment, education, entry to facilities, receipt of services, or issuance of a license, certificate, or permit. Ark. Code § 20-7-142. Montana went even further. As of May 7, 2021, it is unlawful in Montana for any private or government employer to discriminate against any employee based on the employee’s vaccination status or possession of an “immunity passport,” although health care facilities are allowed to inquire about employees’ vaccination status and implement reasonable accommodations to protect employees and patients from any dangers posed by non-vaccinated employees. See Mont. Code Title 49, Chapter 2, Part 3. It remains to be seen if employers or employees seeking a safe workplace will challenge these state laws in court, and how courts will weigh an employer’s interest in workplace safety against the state’s interest in regulating commercial activity and protecting individuals against employer restrictions.

As more employers demand their employees get vaccinated and courts weigh in on existing lawsuits, the tactics of legal resistance to vaccine mandates are sure to adapt and change.

U.S. Department of Justice Gives Go-Ahead to Mandatory COVID-19 Vaccines in the Workplace

Monday, August 2, 2021

As employers nationwide have begun to implement mandatory COVID-19 vaccine requirements in the workplace, legal questions have been presented as to whether these vaccine requirements are legally permissible under various laws. While the EEOC has issued guidance that generally permits mandatory vaccine requirements in the workplace so long as reasonable accommodations are offered for those with disabilities or sincerely held religious beliefs, questions still remained as to whether mandatory workplace vaccine requirements were permissible under other laws, such as the Food, Drug and Cosmetic Act (FDCA), given the Emergency Use Authorization (EUA) process.

DOJ’s July 6, 2021, Memorandum Opinion now opines that mandatory workplace vaccine policies are permissible under the FDCA. Specifically, Section 564 of the FDCA permits employers to impose the COVID-19 vaccination as a condition of employment even when the vaccine is subject to EUA. This opinion applies to both public and private employers outside of the context of the armed forces.

The DOJ emphasized that vaccine mandates are not coercive: They do not strip employees of their rights to refuse a vaccine or not. Although Section 564 states that recipients must be informed of “the option to accept or refuse administration” of the vaccine, Section 564’s mandates are merely informational. As with other conditions of employment, discipline up to termination can be an acceptable consequence for employee refusal to adhere to an otherwise valid employer vaccination policy. Employees can freely choose to accept or refuse a COVID-19 vaccine but will need to work elsewhere if they refuse vaccination against the employer’s policy.

It is important to note that DOJ’s opinion is narrow, only addressing the permissibility of the COVID-19 vaccine under one federal statute. Many other state and local laws may apply, such as state and local equal employment opportunity laws and regulations. In addition, there are a multitude of practical considerations in mandating vaccination.
Practical Considerations for Employers:

Employers must decide how to ensure a safe and compliant workplace while considering employee rights and concerns about COVID-19 vaccinations. The following are some considerations that are important for employers to address in light of the DOJ guidance:

1. Determine whether to mandate the COVID-19 vaccine or implement other avenues for increasing vaccination rates, such as incentivization;

2. Consider instituting or updating company-wide COVID-19 vaccination policies;

3. Review prior EEOC guidance to determine how to accommodate employees with disabilities or religious objections to the vaccine;

4. Review current policies and procedures to ensure proper handling of any accommodation requests;

5. Keep employee vaccination status as confidential medical information;

Monitor CDC and OSHA websites to keep current with guidance;

7. Update COVID-19 policies to determine which employees will be subject to masking and social distancing in light of the CDC Guidance;

8. Keep informed of any local public health rules and regulations requiring masking;

9. Employers maintaining workplaces with employees subject to collective bargaining agreements must consider any bargaining obligations with the Union prior to instituting or modifying vaccination policies;

10. Train supervisors and managers on COVID-19 policies.

DOJ Releases Memorandum Supporting Employers’ Right to Mandate Vaccines Approved by the FDA for Emergency Use
NLR, Wednesday, August 4, 2021

Growing numbers of private businesses and public entities have announced policies requiring employees and others to be vaccinated against COVID-19 as a condition of employment or as a condition of access to facilities or services. In response to this trend, some have argued that employers and other organizations may not lawfully mandate COVID-19 vaccines that have been only approved for use under an emergency use authorization (EUA) as opposed to full approval by the U.S. Food and Drug Administration (FDA). Commentators and legal advisors have been divided over whether the EUA approval precludes mandating the vaccine. On July 6, 2021, the Office of Legal Counsel of the U.S. Department of Justice (DOJ) issued a memorandum opining that private businesses and public entities are not prohibited from mandating COVID-19 vaccines that have only received approval for use under an EUA. The memorandum, “Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization,” helps settle any remaining legal debate and affirms that employers may lawfully require employees to receive COVID-19 vaccinations.
Background and Prior Guidance

COVID-19 hit the shores of the United States in January 2020. Almost immediately, universities, hospitals, and media began to anticipate the development and deployment of effective vaccines. In May 2020 came the announcement of Operation Warp Speed—a public-private partnership between the U.S. government and private companies to develop vaccines to combat COVID-19. Then, in June 2020, the FDA announced that any vaccine would need to be at least 50 percent effective in combating COVID-19 before receiving approval from the agency. Vaccines with effective rates of over 90 percent were announced in late 2020. Shortly thereafter, the FDA issued EUAs for the Pfizer-BioNTech and Moderna vaccines, followed by the Johnson & Johnson/Janssen vaccine. Just as quickly, employers began considering whether to require employees to be vaccinated as a condition of employment or as a condition of performing work on-site at company facilities.

The question of whether an employer may require employees to get vaccinated is not new. For years, some employers in healthcare and other industries have required employees to receive vaccines against influenza and viruses in connection with their employment. In that context, the U.S. Equal Employment Opportunity Commission (EEOC) recognized an employer’s right to insist on vaccinations. For example, in 2009, in connection with the H1N1 pandemic, the EEOC issued guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” There, the EEOC addressed the extent to which the Americans with Disabilities Act (ADA) and other federal employment laws restricted an employer’s ability to mandate influenza vaccines. The guidance, which has since been revised to address COVID-19, posed the question, “May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?” In answering “No,” the EEOC made the obvious observation that under the ADA and Title VII of the Civil Rights Act of 1964 reasonable accommodation must be provided to employees, absent undue hardship, for their disabilities and religious beliefs, practices, or observances.

The EEOC again addressed the issue in an informal discussion letter dated March 5, 2012. In that letter, the EEOC was asked to advise on the extent to which Title VII required giving exceptions to an influenza vaccine for healthcare workers who requested exemptions due to religious beliefs. The EEOC again affirmed that an employer could require an influenza vaccine in certain circumstances, but that Title VII and other federal employment laws required providing reasonable accommodation based on religious beliefs, disability, and pregnancy. The EEOC’s ultimate position was that employers should encourage employees to receive an influenza vaccine rather than require vaccination.

In March 2020, in light of the COVID-19 pandemic, the EEOC updated its pandemic guidance. The EEOC reiterated that any vaccine requirement must provide for exemptions or other reasonable accommodations for employees who cannot get vaccinated due to a disability or a sincerely held religious belief, practice, or observance, absent an undue hardship. At the time the EEOC released its updated pandemic guidance, the agency noted, “there is no vaccine available for COVID-19.” The EEOC continued to opine that “ADA-covered employers should consider simply encouraging employees to get [a vaccine] rather than requiring them to take it.”

As the COVID-19 pandemic gained ground, the EEOC issued more detailed technical guidance entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The EEOC has updated the technical guidance multiple times, most recently on June 28, 2021. In that guidance, the EEOC confirmed that, subject to reasonable accommodation provisions under the ADA and Title VII, “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

As a result of this guidance and the increasing burden of COVID-19 in the workplace, a number of employers have contemplated or put into place policies requiring that employees get vaccinated against COVID-19, either as a condition of employment or as a condition of returning to the office for in-person work activities. This policy has been more prevalent among hospitals and other healthcare providers. Similarly, a number of colleges and universities have announced requirements for staff and students to get vaccinated, and a growing number of federal and state agencies are requiring employees to get vaccinated.
The Dispute Over EUA-Approved Vaccines

Even before COVID-19 vaccines were released, political and legal challenges to mandatory vaccines developed, many of which were based on the notion that employees and others should not be compelled to receive any COVID-19 vaccine that had only received EUA approval from the FDA. For example, Montana enacted House Bill 702, which prohibits discrimination based on vaccination status and provides that “[a]n individual may not be required to receive any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials.” Multiple lawsuits have also been filed against employer vaccine mandates, though none have been success as of yet. One such lawsuit is Bridges v. Houston Methodist Hospital, which was filed in the U.S. District Court for the Southern District of Texas by employees of a hospital after the hospital issued a requirement that all employees must get vaccinated against COVID-19 as a condition of employment. In the lawsuit, the employees claimed that requiring them to receive the COVID-19 vaccine (or risk being discharged) violated numerous laws including: (1) section 564 of the Food, Drug, and Cosmetic Act (FD&C Act) (the EUA provision); (2) FDA regulations that require informed consent before human subjects may participate in human trials; and (3) the Nuremburg Code. Other lawsuits in the United States have similarly argued against mandatory vaccine policies based on the notion that the COVID-19 vaccines are “experimental” absent full FDA approval.

The legal challenges based on the EUA status of COVID-19 vaccinations arise from a misinterpretation of the relevant provisions of the FD&C Act. In 2004, the U.S. Congress amended the FD&C Act to allow for EUA approvals as a way to more rapidly deploy protections and countermeasures against chemical, biological, nuclear, or radiological threats. The statute provides that in connection with an EUA approval, the secretary of the U.S. Department of Health and Human Services must establish certain conditions on an EUA “to protect the public health” and ensure that “individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” Some have argued that this provision should be interpreted to mean that private and public entities may not mandate EUA-approved vaccines, while others have argued that the statute refers only to health consequences and/or that the FDA does not have the authority to regulate the employment consequences imposed by an employer due to an employee’s refusal to comply with a mandatory vaccine policy. In other words, the FD&C Act may require that vaccine providers and administrators advise recipients of their right to refuse the vaccine and that they will not suffer any healthcare consequences for doing so, but there is a compelling argument that nothing prohibits an employer from conditioning employment on an employee’s choice to get vaccinated.

The July 26, 2021, DOJ memorandum addresses the argument. There, the DOJ notes that the EUA provision requires informed consent from those receiving the vaccine and that the EUA approval given to the currently available COVID-19 vaccines requires that recipients receive an FDA-approved “Fact Sheet for Recipients and Caregivers,” which states: “It is your choice to receive or not receive the … COVID-19 Vaccine.” In assessing whether the FD&C Act and the fact sheet language prohibit mandatory vaccine policies, the DOJ concluded that “[the EUA provision] concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.” The DOJ further reasoned:

Indeed, if Congress had intended to restrict entities from imposing EUA vaccination requirements, it chose a strangely oblique way to do so, embedding the restriction in a provision that on its face requires only that individuals be provided with certain information (and grouping that requirement with other conditions that are likewise informational in nature). Congress could have created such a restriction by simply stating that persons (or certain categories of persons) may not require others to use an EUA product.
Key Takeaways

The DOJ memorandum is helpful to employers contemplating mandatory vaccine programs. While the DOJ memorandum is not binding on courts and does not carry the weight of law, it nevertheless affirms the interpretation offered by many that the EUA status of COVID-19 vaccines does not preclude a private or public employer’s ability to mandate that employees get vaccinated. Rather, as noted in EEOC guidance, federal law does not prohibit mandating vaccines, provided employers comply with the requirements of federal employment laws, such as the “direct threat” and reasonable accommodation provisions of the ADA and Title VII.

Employers seeking to mandate COVID-19 vaccines may also want to take into account any restrictions arising from applicable state laws, as some states have passed or are considering legislation that would nevertheless restrict an employer’s ability to mandate vaccines. Employers may also wish to carefully consider the practical and legal implications of ADA and Title VII restrictions and assess whether their organizations have in place effective and compliant processes for identifying and addressing reasonable accommodations.

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The Buffalo News: New York’s Commitment To Open Government Belongs In Its Constitution

To better guarantee New Yorkers' rights to open government and freedom of information, Gov. Kathy Hochul should emulate Florida and push to include those rights in the state constitution.

 The Editorial Board: New York’s commitment to open government belongs in its constitution

Freedom of information laws are supposed to give citizens the ability to easily access facts and figures about the governments they fund. This was based on the entirely correct idea that American governments are of, by and for the people. In New York, there are only a few exceptions to the rules on openness.

Yet, this state does a terrible job of responding to the informational needs of the public, including news reporters whose clients are the public. The reason is obvious: The law is insufficient to the need. Statues need not only to be stronger but grounded in a constitutional amendment.

New York isn’t alone in abusing its laws on open government; around the country, governments at all levels have twisted Freedom of Information laws into tools meant to thwart the very goal of those statutes. It’s a cynical ploy by elected officials who turn on the people they are supposed to represent.

New Yorkers, therefore, should be pleased that on her first day in office, Gov. Kathy Hochul promised to speed the task of complying with FOI requests.

“To me, it’s very simple,” Hochul said. “We’ll focus on open, ethical governing that New Yorkers will trust.” To that end, she said she instructed her counsel to craft an expedited process for completing Freedom of Information requests.

If she follows through, it will count as a good start on everything else that needs to be done to better acknowledge the superior position New Yorkers hold in relation to their governments. It’s their information.

Florida recognizes that. Its commitment to open government is grounded in the state constitution. There, the Reporters Committee for Freedom of the Press observed in 2003, “there’s no messing around with open government.”

New York needs that kind of reputation and, as if to underscore the point, the conservative Empire Center for Public Policy reported this week that it had obtained a 2018 directive that hindered the cause of open government. The policy required “sensitive” requests for information to be sent first to then-Gov. Andrew Cuomo’s office for a four-week process of review and approval.

The policy, it said, included several factors for deciding whether a request for information qualified as sensitive. They included:

• “Is it from a media outlet?”

• “Is it related to something political?”

• “Is it connected to potential legal action against the Department?”

•“Is it non-routine information?”

None of this is permitted by the law, which allows five days for review and approval and which doesn’t care who filed the request, whether it touched on politics and whether it is routine. The laws do allow information on some legal matters to be withheld, but not all of them. This policy counts as a violation.

No one should able to do that – not a governor or the newest member of a village board. That it happens underscores one of the weaknesses of New York’s Freedom of Information Law: The only consequence to violating it is public exposure and the possibility of having to pay the legal costs of anyone who had to go to court to pry the information loose.

Thus, it is no surprise that the Cuomo administration resisted releasing information about nursing home deaths in the early part of the Covid-19 pandemic. Nor was it shocking that, for a long time, the administration of Buffalo Mayor Byron W. Brown made it difficult to get information on crime in the city.

That problem, at least, has eased in recent years, but it’s not enough for New Yorkers to rely on the eventual compliance of any given mayor or supervisor or governor. As with Americans’ freedom of speech, New Yorkers need guarantees.

Hochul could be transformational by pushing for a constitutional amendment that declares opening meetings and freedom of information sacrosanct. By making the right undeniable and attaching penalties for violations – they include jail time or eviction from office in some states – New York’s new governor can strengthen the state’s commitment to democracy by making it more difficult for public officials to operate in the shadows.