Newsom, guards challenge vaccine mandates at prisons

Nov. 4, 2021 4:42 PM PT

With COVID-19 vaccine mandates growing across California, opponents in law enforcement are warning that their ranks would rather quit or retire than get their shots.

And the state’s prison guards and staff have an unusual ally: Gov. Gavin Newsom, who has otherwise been a champion of vaccines.

Newsom has joined the California Department of Corrections and Rehabilitation in appealing a vaccination order for all prison employees. They are asking that a September ruling by U.S. District Judge Jon S. Tigar be paused pending appeals, saying that if it is implemented, numerous correctional officers will leave their jobs rather than submit to a COVID-19 vaccine.

That exodus, they argue, would plunge the state’s 34 prisons, which house some 99,000 inmates, into a crisis, including creating situations that could leave prisoners locked in their cells for much of the day.

The arguments mirror those of Los Angeles County Sheriff Alex Villanueva, who said last week that the county’s vaccine mandate would trigger a “mass exodus” of deputies.

“I have repeatedly stated the dangers to public safety when 20% to 30% of my workforce is no longer available to provide service, and those dangers are quickly becoming a reality,” Villanueva said in a statement that he posted on social media last week. “We are experiencing an increase in unscheduled retirements, worker compensation claims, employees quitting, and a reduction in qualified applicants.”

Among California’s 28,248 correctional officers, a little over 51% are fully vaccinated, as are about 64% of all the prisons’ 66,480 staff members, according to state data.

That leaves thousands facing the repercussions of the vaccine mandate, lawyers for Newsom and corrections officials have argued in court papers. They have requested an alternative testing requirement for those who do not wish to be vaccinated. Religious exemptions already exist.

Connie Gipson, director of adult institutions for the California Department of Corrections and Rehabilitation, said in court documents that when a similar vaccine mandate was enacted in Washington, about 4.5% of the state’s prison staff quit. Although Washington has been able to continue its prison operations largely unimpeded, Gipson said that level of resignations in California would have a “severe” impact.

Attorneys for the state cited two medical prisons as likely barometers for the vaccine mandate among all prison staff. At the California Medical Facility in Vacaville, 10.14% of the staff had not complied with vaccine requirements by Oct. 25, and 8.26% of the staff at the California Health Care Facility in Stockton had not, according to court documents. All staff were required to be vaccinated by Oct. 14, following orders from the California Department of Public Health.

“If the vaccine mandate order is implemented, there is a serious risk that a substantial number of highly experienced and skilled correctional officers who are currently eligible for retirement benefits will simply choose to retire rather than be vaccinated,” attorneys said.

There are 1,898 officers who have more than 20 years on the job and can retire when they want, lawyers for the California Department of Corrections and Rehabilitation said, adding that if those officers leave, they will be hard to replace as far fewer cadets are applying and only 24% of those currently enrolled in the academy are vaccinated.

In arguing for the mandate, a federal court-appointed receiver overseeing prison medical care said it was the only way to prevent another deadly outbreak like what occurred last year at San Quentin State Prison, where 28 prisoners and one officer died of COVID-19. J. Clark Kelso and his medical staff say the virus, which they think is spread mostly from prison staff, has infected more than 50,000 inmates and over 20,000 employees.

Steven Fama, an attorney for the Prison Law Office representing prisoners in California, said the attempt to block the vaccine mandate — and Newsom’s support of it — is political.

“The governor and CDCR’s claim that the prisons cannot operate safely if staff are required to be vaccinated strikes me as overblown,” he said.

Fama said he thinks Newsom is supporting political advocates who fought against his recall. The California Correctional Peace Officers Assn. in July donated $1.75 million to a defense fund that was fighting against Newsom’s recall. The Service Employees International Union, which represents about 12,000 prison staff member, kicked in a combined $5.5 million to Newsom’s anti-recall campaign from its various local unions.

There have been more than 240 COVID-related deaths among inmates, and 48 among prison staff — 20 of which occurred in the last three months after vaccines had been available for months, Fama said.

“It’s sad, but the governor did not — on his own — order a vaccine mandate for all prison staff, with no testing alternative, even when the CDCR’s top medical doctor said it was necessary,” he said. “This despite the fact that if COVID were to design its ideal home, it would build a prison.

Newsom’s office on Thursday pointed out that California has one of the lowest coronavirus transmission rates in the nation.

“Since early in this pandemic, CDCR has implemented rigorous COVID safety measures, including mandatory masking, twice weekly testing for staff and the early rollout of vaccines for incarcerated people and staff,” a spokesperson for the governor said, adding that 78% of prisoners and 64% of staff have been fully vaccinated.

Tigar will consider delaying the prison vaccination mandate at a Nov. 17 hearing. The judge previously sided with rejected efforts to block the mandate by Newsom and the prison guards union, who have appealed to the 9th Circuit Court of Appeals.

“Once the virus enters a facility, it is very difficult to contain, and the dominant route by which it enters a prison is through infected staff,” the judge wrote in his order explaining his reasoning.

Times staff writer Priscella Vega contributed to this report.