State troopers and other public employees file lawsuit to overturn Inslee vaccine mandate

Sep 13, 2021
Originally published on September 13, 2021 10:56 am

More than 90 state troopers, correctional officers, ferry workers, city firefighters and other public sector employees in Washington have filed a lawsuit in an attempt to overturn Gov. Jay Inslee’s requirement that they get vaccinated against COVID-19, or lose their jobs.

The lawsuit, filed Friday in Walla Walla County Superior Court by the Seattle law firm Arnold and Jacobowitz PLLC, alleges that Inslee is exceeding his authority and violating the rights of the workers covered by the mandate.

The attorney who filed the lawsuit, Nathan Arnold, was not immediately available Monday morning.

However, in a signed copy of the lawsuit dated September 10 and obtained by the public radio NW News Network he wrote: “The penalties for not taking affirmative action to comply with the Governor’s Mandate are overly severe, punitive, and unconscionable.” He also called the penalty of termination “arbitrary and capricious,” especially for employees who can work from home or have natural immunity from having previously contracted COVID-19.

An Inslee spokesperson, Mike Faulk, said in an email Monday the office had not yet reviewed the lawsuit, but added: “We know these vaccine requirements are legal and essential for saving lives.”

Inslee issued his vaccine mandate on August 9. It requires most state employees, on-site contractors and volunteers, as well as private health care and long-term care workers to be fully vaccinated by October 18. Inslee later expanded the mandate to include workers in educational settings from preschool through higher education.

While Inslee did not offer a testing alternative in lieu of the vaccine, workers subject to the mandate can apply for religious or medical exemptions.

It is believed this is the first lawsuit that aims to fully repeal the mandate. Previously, the Washington Federation of State Employees sued to delay the implementation of the governor’s order. However, the union later reached an agreement with the Inslee administration, which was ratified last week by the membership.

The lawsuit to overturn the mandate alleges that it will result in “certain protected and religious classes being purged from civil service.”

It also said the mandate runs afoul of the Washington Constitution and its guarantee of “Absolute freedom of conscience in all matters of religious sentiment, belief and worship.”

The lead plaintiffs in the lawsuit are William Cleary, described as a firefighter and Catholic from King County and Sherra Cleary, a healthcare worker who is pregnant. They are married, but it was not immediately clear if she is also a public sector employee.

Other plaintiffs include firefighters from Seattle, Spokane and elsewhere, numerous employees of the Washington State Patrol and the Department of Corrections, Washington State Ferries and school district employees, along with state employees who are members of a group called WA 4 Freedom, SPC.

The lawsuit said some of the plaintiffs have already applied for medical or religious exemptions, but argued that the state application for a religious exemption violates personal privacy.

The lawsuit also included a copy of an August 3 email from Inslee’s general counsel, Kathryn Leathers, to lawyers in the attorney general’s office that said any religious exemption, if required, should be “as narrow as possible.”

Another email indicated that the Inslee administration at one time planned to offer a testing option, in lieu of requiring workers to get a vaccine, at least to start. As such, the lawsuit said the vaccine mandate, without a testing alternative, is overly restrictive.

Inslee’s office said Monday that the testing option was part of “preliminary” discussions, but never decided upon.

Inslee has repeatedly said he doesn’t think regular COVID-19 testing is a safe or effective strategy to combat the virus, especially with vaccines now available.

The plaintiffs are asking the court to find Inslee’s mandate unconstitutional and in excess of his legal authority. Among the legal theories they are pursuing is that the mandate violates the separation of powers, constitutes a deprivation of privacy and religious freedom and violates the state’s anti-discrimination law.

If the court upholds the mandate, the lawsuit said workers should be able to opt out of the vaccine by producing a positive COVID-19 antibody test.

Historically, courts have upheld vaccine mandates as constitutional and just last month the U.S. Supreme Court declined to take up a challenge to Indiana University’s vaccine mandate. Additionally, states including Washington require certain vaccines for students to attend school.

Last week, President Biden issued a vaccine mandate that requires most federal workers and contractors to get vaccinated. Workers at companies with more than 100 employees must also get vaccinated or get tested weekly for COVID-19.

Conrad Wilson of Oregon Public Broadcasting contributed to this story

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