Judge rejects union challenge to Allegheny County employee vaccine mandate, denies injunction

A federal judge on Monday denied a request for a preliminary injunction by unions representing Allegheny County Jail corrections officers and county police officers challenging the county’s vaccine mandate for employees.

That means the mandate, without any appeal, will take effect on Dec. 1. Allegheny County Executive Rich Fitzgerald had issued the covid-19 vaccine requirement on Sept. 29 and said that employees who don’t meet it will be terminated as of Dec. 1. Under the policy, employees must have received both doses of either the Moderna or Pfizer vaccine by that date, or the single shot of the Johnson & Johnson vaccine.

“We’re glad that the county’s vaccine requirement is remaining in place; it’s a win for science,” said county solicitor Andy Szefi. “Approximately 87% of our county employees have been vaccinated to date and we are hopeful that today’s decision will move those remaining employees to get vaccinated to protect themselves, their families, their coworkers, and the residents that we serve.”

In ruling from the bench following four hours of argument and testimony, U.S. District Judge Cathy Bissoon said the unions did not meet their legal burden on multiple levels.

Union attorney Ronald Retsch argued that if the mandate remained in place, the county police could lose as much as 20% of its officers, while the jail could lose up to 40%.

“If 200 of us get terminated, how are you going to maintain the jail operation safely?” asked correction officer Jason Batykefer, who serves as union president. “Forcing vaccination, I don’t think, is reasonable.”

The unions sought an injunction to halt the mandate, which would have allowed them to take the mandatory vaccination question before the labor board as a subject of collective bargaining.

Retsch argued to the court that the union members are being denied due process.

“It’s not a fair choice. It’s a coerced choice,” he said. “Once a vaccine is administered, it can’t be undone.”

Attorney Virginia Scott, who represented the county, said Retsch mischaracterized the decision. If the union members don’t get vaccinated and are fired, she said, they can still pursue action against the county to seek financial damages.

“There’s nothing in this policy that requires them to do it,” she said. “They have an option.”

Bissoon agreed.

“Any member who does not wish to be vaccinated can refuse it,” Bissoon said.

She found that the union failed to show a likelihood of success on the merits of the issue or that their members would suffer irreparable harm.

Kenneth Scanlon, county police union president, testified that his organization has 208 members, and the vaccination rate is between 75% and 78%. No one in the department has died from covid-19, he said.

If the police lose 20% of their work force, he said, it is likely that detectives will have to move from investigations units to patrol, and there will be forced overtime and canceled leave.

But, on cross-examination by Scott, he acknowledged that the county’s vaccine policy is designed to protect the health, safety and welfare of the community.

“We are there to serve the greater good,” he said. “Health, safety and welfare is what we do everyday.”

“Collective bargaining doesn’t trump that?” she asked.

“I would say that’s fair.”

The policy is being challenged at the Pennsylvania Labor Relations Board but will likely be a lengthy process.