Vax-or-test policy: Lawsuit against Bloomington filed by three city unions contends new regs on COVID-19 impose new unnegotiated employment conditions

A lawsuit filed on Tuesday against the city of Bloomington in Monroe County circuit court claims that a new COVID-19 policy is in conflict with union contacts.

The city’s policy requires employees to show proof of vaccination against COVID-19 or get tested weekly for an infection. If any employee does not show proof of vaccination or get tested weekly, then under the policy, they will be “removed from the workplace until they provide a test result.”

Absences caused by failure to comply with the vax-or-test policy will necessarily mean lost income. The policy states: “They will not be allowed to use benefit time to cover their absences; the absence will be unpaid.”

On Saturday morning through mid-day, a dozen or so members of the city’s AFSCME local, including some workers in the public works and utilities departments, demonstrated on the courthouse square in downtown Bloomington against the city’s vax-or-test policy. They held signs with slogans like, “Please Don’t Abuse Loyal Employees” and “Keep Compassion in Fashion”

The lawsuit contends that the city’s new policy imposes new conditions of employment that the City did not negotiate with the unions.

Parties to the lawsuit include the police union [Don Owens Memorial Lodge 88, Fraternal Order of Police], firefighters union [Bloomington Metropolitan International Association of Firefighters Local 586] and the union that includes several other city workers [AFSCME Local 2487].

The city’s new policy is based on a new Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) which is now in effect for employers with more than 100 workers. The city of Bloomington has around 850 employees.

The OSHA ETS is the subject of ongoing litigation. The U.S Supreme Court heard oral arguments on Friday (Jan. 7) in the case that the National Federation of Independent Business, among others, has filed against the U.S. Department of Labor and OSHA.

According to OSHA’s website, the emergency temporary standard (ETS) will not be enforced at all before Jan. 10. OSHA will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, as long as an employer is exercising “reasonable, good faith efforts to come into compliance with the standard.”

The local lawsuit asks the court to grant a preliminary injunction against enforcement of the city’s policy.

In a written statement to The B Square, police union president Paul Post said, “The FOP is proud to stand with the members of Fire Local 586 and AFSCME Local 2487 against the City’s early application of the still being litigated OSHA Emergency Temporary Standard.”

Post’s statement continues, “This request for an injunction is simply for a ‘pause’ until that rule is decided upon at the State and Federal level.”

On the topic of vaccination, Post stated, “I want to be clear, we encourage our members to vaccinate if they choose, and have no issue with them following testing requirements to keep the employees and our citizens safe.”

The lawsuit is about changing the conditions of employment for union members, the threat of disciplinary action, Post said.

President of the AFSCME Local 2487, Bradley Rushton, told The B Square on Saturday that his understanding of the progressive disciplinary actions described in the city’s policy could lead to firing. “All I know, is that we are currently under threat of suspension without pay. And I’m going to presume it would be logical, at some point in time, you will be terminated,” Rushton said.

Part of the context for the disagreement with the unions and the city includes ongoing and future collective bargaining negotiations. The AFSCME collective bargaining agreement with the city of Bloomington goes through the end of this year. Bargaining sessions on the next contract, which will become effective starting 2023, are supposed to start in May, Rushton said.

The police union contract also runs through the end of 2022. The bargaining sessions between the city and the police union have already started. According to city attorney Mike Rouker, the two sides met five times last year, on Oct. 25, Oct. 28, Nov. 15, Dec. 6, and Dec. 9. One meeting has already taken place this year, on Jan. 6.

The next two sessions are set for Jan. 10 and Jan. 19, according to Rouker.

Asked at a news conference on Friday if the lawsuit will affect collective bargaining with police, Bloomington’s mayor Hamilton said, “We’ll proceed with those. They do not affect the police quadrennial collective bargaining negotiations.”

The lawsuit filed locally contends that  the city’s policy constitutes a change to the terms and conditions of employment, to which the unions did not agree, and that the city of Bloomington failed to negotiate in good faith with respect to the new conditions.

The lawsuit further contends that the city’s policy imposes penalties and a disciplinary process for non-compliance that are outside the process outlined in the collective bargaining agreements and are outside of state law.

The lawsuit also says that the city’s policy violates a state law, enacted last year, that prohibits a local unit like a city from requiring an “immunization passport.”

The lawsuit says that the city’s policy requires employees to pay for the required COVID-19 tests.

On that point, the policy states: “The City may choose to provide and/or sell self-administered tests to employees.” Asked at a Friday news conference if the city would be providing the tests to employees or selling them the tests, Bloomington’s mayor John Hamilton indicated that the current challenge is obtaining any tests.

The shortage of tests, which is a nationwide problem, caused Indiana’s Department of Health last week to revise its approach to offering rapid tests. Rapid tests at state and local health department testing sites will only be available to individuals under 18 and for symptomatic people older than 50.

On the topic of tests for employees, Hamilton said, “At the moment, we are trying to procure tests. We have instituted the requirement that employees get those tests.” Hamilton added, “Whether we’ll be able to provide them directly in the workplace, we’re looking at that. Whether we will sell those in the workplace or provide them is a matter still to be determined.”

Hamilton added, “But at the moment, we are not directly providing those tests. We don’t have a big number on hand, but we are trying to arrange for that for the future.”

Under the city’s policy, employees are allowed to take up to eight hours of work time, four hours per dose, to get vaccinated. They’re also allowed to take paid time off or sick time following a dose of vaccine, if they experience side effects.

Under the city’s policy, work time can’t be used for testing. The policy states: “Employees should schedule their test outside of work hours.”

The city’s policy that allows the use of work time for vaccination, but not for testing, is consistent with the OSHA emergency temporary standard (ETS). The ETS states that an employer has to “provide a reasonable amount of time to each employee for each of their primary vaccination dose(s); and up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose.”

The ETS also states that “The employer must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose.”

The ETS does not require employers to allow employees to take work time to be tested.

The courthouse is not the seat of Bloomington’s city government, but the southeast corner of the square is a traditional spot for local demonstrations.

Some of AFSCME union members who were demonstrating in front of the courthouse on Saturday morning, told The B Square their objections to the policy, and the way it is being implemented, aren’t related to their opposition to being vaccinated.

Jeff Morris, who works in the streets division of public works, told The B Square, “I am vaccinated, but the city doesn’t know.” That means Morris is forgoing a $100 wellness incentive and he’s paying an extra $600 in health insurance, because he doesn’t want to provide documentation of his vaccination to the city.

As Morris put it, “The city is not my doctor or my health care provider. Why do they need that information?”

Morris also objects to the idea that the information about vaccination status is now being used to divide employees into two groups: “the vaxxed and the unvaxxed.”

“I feel like when people gave their information for this incentive, they didn’t give it because they were going to be put on a list to separate everybody,” Morris said.

According to Jon Deckard, who works in the utilities department, a literal list of those employees who have not submitted proof of vaccination to the city has been sent to supervisors. Those on the list, like Morris and Deckard, could be vaccinated or not. But such a list would identify those who are vaccinated, through their omission from it, which the two AFSCME members see as a violation of privacy.

Following the OSHA ETS standard, the city’s new vax-or-test policy comes with differing mask requirements for employees, depending on their proof-of-vaccination status. That creates a kind of a division of the workforce that Deckard sees as undesirable.

“It’s the ones that have been vaxxed versus the ones that have not, and the city is trying to turn the two against each other,” Deckard said. As an example, Deckard said, “If we’re out in the shop talking, even if we’re six feet apart, a supervisor can walk up to me and be like, ‘You’re not vaxxed, you need to put a mask on,’ and walk right past the other guy.”

Deckard said, “We’re both equal employees. But that is separating us, because that supervisor’s got a list of names that he can use to go through and just point and say: You need to wear a mask, and you need to wear a mask, but you’re fine.”

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