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Judge won’t delay vaccine mandate for California prison staff

Correctional officers will have to be vaccinated by Jan. 12, as a judge denied their request to hold off on imposing a vaccine mandate pending the outcome of their appeal.

OAKLAND, Calif. (CN) — A federal judge has rejected a bid from California's prison guards to defer an order that all prison employees be vaccinated against Covid-19.

“This court has determined that its mandatory vaccination order is required to protect the constitutional rights of persons incarcerated by the State of California, and that plaintiffs face a substantial risk of serious harm, including serious illness and death, in the absence of a vaccine mandate," U.S. District Judge Jon Tigar wrote in a ruling issued late Wednesday.

The threat of Covid-19 in California prisons has largely abated, lawyers for correctional staff told the judge at a virtual hearing that afternoon as they tried to persuade him to hold off on imposing the vaccine mandate he issued in late September.

His compliance deadline of Jan. 12, 2022, has given rise to fierce resistance from the state’s powerful prison guards’ union, the California Correctional Peace Officers Association, who along with Governor Gavin Newsom asked Tigar to postpone the vaccine mandate pending the outcome of their appeal to the Ninth Circuit.

“We have compelling reasons for a stay to protect our members. If the order goes into effect, we have tens of thousands of men and women who have dedicated their careers to keeping their communities safe — they worked through this pandemic while many of us sat in clean, safe offices — and now they're going to be asked to either take an unwanted medical procedure or potentially risk their careers,” union attorney Greg McLean Adam told Tigar.

He said the prisons have had remarkable success in keeping the virus at bay since March of this year, noting that case rates among inmates continue to hover around 200.

“There have been no major spikes since March,” Adam said. “The case count has been pretty much at 200 since March. Yes there have been instances in individual prisons. But 50% of our prisons have no cases whatsoever yet are facing the same mandate applying to all.”

Active cases among prison employees has also dropped, he noted. “Not that we're out of the woods, but given the gravity of this case and the extraordinary relief the court has granted, the court can issue a stay given the current conditions in the prison without feeling there's a dramatic risk of injury to the residents by doing so.”

He said Tigar should not dwell on trying to "achieve perfection," to which the judge retorted, “My goal is not perfection but avoiding preventable death is among the considerations on the table.”

He later addressed the correctional staff who may be watching the hearing on Zoom.

"I know that not all of you agree with what I'm doing. But I will say I feel the deaths of correctional and other staff from Covid very heavily and part of my mission is to protect you,” Tigar said. “And I'm sorry if you don't like the way I'm doing it, but God I wish it wouldn't happen anymore.”

Attorney Brad Brian, who represents a federal receiver appointed to oversee the prison system, said about 518 people have been sickened with Covid-19 and nine staff members have died in the span of time between Tigar’s order dated Sept. 27 and the end of October. “A tenth one has died since then,” he added. “There were major outbreaks in five institutions during that period, and there’s now been a major outbreak in a sixth.”

Laura Bixby, an attorney with the Prison Law Office who represents inmates, pointed to Newsom’s recent pronouncement that winter may bring another rise in cases. “Is even one unnecessary death sufficient to justify not granting a stay? We would say yes,” she said.

In his ruling Tigar said that while staff may choose to resign or retire rather than accept the vaccine, "Defendants’ and CCPOA’s dire predictions of what might happen in the absence of a stay are speculative" since the number of potential staff departures remains unknown.

The union did not respond to a request for comment by press time.

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