Arbitrator Upholds Chicago Police Vaccine Mandate

Written on 04/16/2022
Will Aitchison

The sworn members of the Chi­cago Police Department who are not exempt are represented by four unions. The Fraternal Order of Police Chicago Lodge No. 7 represents officers below the rank of Sergeant. The Policemen’s Benevolent & Protective Association of Illinois has three Units: Unit 156A represents the Sergeants, Unit 156B represents the Lieutenants, and Unit 156C represents Captains.

On August 25, 2021, Chicago’s Mayor announced that all City employ­ees, including members of CPD, were required to be fully vaccinated against COVID-19 by October 15, 2021 unless they had received a medical or religious accommodation. A flurry of grievances, demands to bargain, and unfair labor practice complaints produced the end result that Arbitrator George Roumell was required to decide whether the City’s vaccine mandate violated any of the CBAs.

In a lengthy opinion, the Arbitrator upheld the mandate, though with some slight changes. The Arbitrator began by writing that “the sole responsibility of this Arbitrator is to interpret the respec­tive Collective Bargaining Agreements addressing the dispute that has arisen between the parties following the City’s announced implementation of the vaccine mandate and the requirement to report one’s vaccination status with the Unions maintaining, based upon their CBAs, that the status quo be maintained and that there was a duty to engage in contractually provided impasse procedures, alleging that the vaccination policy was a change in working conditions. To address the contractual issues as just summarized by this Arbitrator, there are several steps to be followed in the analysis of the contractual issues raised.

“As part of their respective argu­ments, the parties have invited this Arbitrator to consider Court review of vaccine mandates. As a starting point, it is noted that both the United States Supreme Court and the Seventh Cir­cuit have recognized that vaccination mandates by state and local govern­ments are constitutional. The Unions rely on decisions of two United States district judges in Texas who enjoined in separate cases the vaccine mandate for military personnel and federal civilian employees on the grounds that the President did not have the authority to issue such a mandate. However, the Texas United States district courts are not the Supreme Court of the United States.

“In considering whether the vac­cine mandate issued by the City and Department is reasonable, the Unions invited this Arbitrator to consider the fact that out of nine large cities the majority do not have a vaccine mandate for their police departments. Of these cities, New York, Los Angeles, San Diego and San José have mandates for their respective police departments. It is noted that New York and Los Angeles have the first and second highest pop­ulation in the country. Chicago may be third in population in the country, causing this Arbitrator to conclude that there are other departments in large cities that have vaccine mandates which support the reasonableness of the vaccine mandate in the Chicago Police Department.

“Having concluded that the med­ical evidence on this record supports a vaccine mandate, that the issuance of a vaccine mandate was within manage­ment rights pursuant to Article 4, and that there was no legal impediment to the issuance of the vaccine mandating, the question remains concerning the nature and scope of the award to be issued by this Arbitrator. This Opinion is being issued on February 23, 2022. The Award will provide that the sworn members of the Department are to have received the first shot of the vaccine selected by no later than March 13, 2022 and the second shot of vaccine no later than April 13, 2022. This delay, caused by the nature of the litigation, does not diminish the medical support for the vaccine mandate as the medical testimony supports the proposition that vaccine is effective against serious illness due to COVID-19.

“The provisions for medical and religious accommodations brought forth vigorous debate between the parties. Noting that 6,621 members of the Chicago Police Department have applied for religious accommodations as of December 15, 2020; that 3,833 applications are pending, or 58%; and that ‘only’ 44 or 1.5% have been granted, the Unions argue that the City is unfairly denying religious accom­modations to members of the Police Department. This Arbitrator concludes that the policy as to accommodation is not unreasonable.

“There is no question that arbi­trators in disputes between the City and the FOP have concluded that the ‘relieved from duty’ language in Sec­tion 8.1 requires a just cause analysis when the removal is for alleged phys­ical or psychological reasons. On the other hand, there is a line of arbitrator awards recognizing that placement on a non-disciplinary no-pay status is not a removal requiring a just cause analysis.

“It is this latter line of arbitration decisions that causes this Arbitrator to conclude that the placement of an officer on no-pay status during the time that the officer failed to submit vaccination status in the COVID-19 vaccination portal was not a ‘concealed act of discipline’ or, for that matter, a ‘concealed act of removal.’ Unlike discipline or removal, it is within the ex­clusive control of the officer as to when the officer is returned to the payroll by reporting the officer’s vaccination status in the portal as 197 officers have done who had been on no-pay status because the officers had not reported their vaccination status.

“When an officer is suspended or removed, the officer has no control over the consequences of such Department actions except to file a grievance chal­lenging the Department’s actions. For the above reasons, the placement of an officer on no-pay status who failed to report his or her vaccine status as such did not violate the provisions of Section 8.1.

“The grievances are denied. Police Department employees are to obtain the first shot of the Moderna or Pfizer shots and the Johnson & Johnson shot by March 13, 2022 and to obtain the second shot of the Moderna or Pfizer shot by April 13, 2022. So long as the employees obtain the shots by the deadlines set forth, they will establish that he or she has made a good faith attempt to obtain an appointment to be vaccinated prior to March 13, 2022, but were unable to obtain such an appointment and be vaccinated until after March 13, 2022, then the Department, on a case-by-case basis, depending on the facts, is to extend the deadlines to comply for a reasonable short period for that employee only. Disputes as to whether the individual employee acted in good faith and the reasonableness of the time extension as well as any remedy are to be resolved by this Arbitrator in an expedited proce­dure as determined by this Arbitrator.

“Employees whose requests have not previously been denied and who have submitted all required docu­mentation for either a medical or religious exemption by December 28, 2021 to the City’s Human Resources Department shall be exempt from the requirement to be vaccinated while a decision on the request is pending. However, if a request is denied, the employee shall have six weeks from the date of receipt of the denial to comply with the vaccination requirements. Employees who receive a vaccine and are unable to report to work due to an adverse reaction shall not be charged with a sick leave violation and will be entitled to the same sick leave benefits for adverse vaccine reactions as they received for any other ailment.”

City of Chicago (Roumell, 2022).

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