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(*This story was updated at 3:35 p.m. on Thursday, 8/12/21, with additional information about PSCOA and comment from Temple University epidemiologist Krys Johnson, and at 4:05 p.m. with additional comment from PSCOA)
The unions representing state workers in Pennsylvania have faced a choice in dealing with Gov. Tom Wolf’s new policy ordering tens of thousands of state employees to get vaccinated against COVID-19 or undergo weekly tests: To bargain, or to sue?
According to a recent blog post by the president of the union that represents 11,000 state prison guards and other corrections employees, a lawsuit wouldn’t be successful.
“I was asked if the union could file an injunction on behalf of the membership. We have explored this,” Pennsylvania State Corrections Officers Association President John Eckenrode wrote on Aug. 2. “The answer unfortunately is, we cannot file on behalf of the entire body. You cannot file a blanket injunction.”
But on Thursday, Eckenrode’s union had an apparent change of heart, and said it had instructed legal counsel to challenge the proposed policy.
In a letter to Wolf, Eckenrode said the administration’s “decision this week to mandate vaccinations and/or testing is a slap in the face — and, frankly, way too late because thousands of our members already have been infected, due to your inaction,” the letter, signed by Eckenrode, reads.
Earlier in the week, the Democratic governor said that 25,000 commonwealth employees in congregate and medical facilities, such as state prisons and centers for people with disabilities, must either be vaccinated or receive weekly COVID tests.
The administration said the tests would be at no cost to workers, and would likely be conducted on-site.
While the correction officers union is taking aggressive action, other unions subject to the order are taking a different approach.
Council 13 of the American Federation of State, County and Municipal Employees, which represents 65,000 public employees in Pennsylvania, said it had offered to bargain with the administration over the new policy.
“Our union remains committed to protecting our members’ rights as employees and handling employer vaccine mandates through bargaining to ensure the workers who have kept us going throughout this pandemic are treated fairly,” AFSCME Council 13 Executive Director David Henderson said in a statement.
SEIU 668, a statewide local of Service Employees International Union, also represents thousands of public sector workers, including some prison staff.
Local 668 president Steve Catanese told the Capital-Star the union has spent time promoting vaccines among its membership. The union also has asked the Wolf administration to bargain over the policy.
Bargaining,could still make the policy better and safer for those with health or religious opposition to the vaccine, while keeping in place health protections for workers and citizens, Catanese said.
But, Catanese continued, he wouldn’t spend union dues “filing lawsuits that I don’t know the efficacy of.”
In an emailed statement, Eckenrode clarified that the Aug. 2 post was “an old message.”
“Since then, our counsel has looked more extensively into this issue. PSCOA believes it’s on excellent legal footing and intends to aggressively pursue a legal remedy for our members,” he said.
In his blog post, Eckenrode said that he supported union members whether they wanted to be vaccinated or not.
“The people that wanted to be vaccinated had and still have the opportunity to be vaccinated. We support the people that want to be vaccinated and strongly encourage you to do so if you wish,” Eckenrode wrote. “If you are the person that does not want to be vaccinated, that is your God given right as an American in a free society and we strongly support your decision, and we will do everything in our power to attempt to make sure that it is not made to be mandatory.”
He added that the path to make sure members were not unwillingly vaccinated was a bill sponsored by Rep. Russ Diamond, R-Lebanon, that gives employees a right to refuse vaccination.
“There is talk if you do not take the vaccine, you will have to be routinely tested. If this is true, let them test you,” Eckenrode wrote. “The most important thing that you can do is call your legislator(s).”
He also advised vaccine skeptics to “get a doctor to certify that receiving the vaccine would be more harmful, than not receiving the vaccine.”
But vaccination rates have also remained low among corrections officers. Just over 20 percent have been fully vaccinated, according to Department of Corrections data.
Regardless of their internal discussions, Eckenrode blamed Wolf administration policies for the spread of COVID-19 in prisons in his letter Thursday. He also pointed to the continued transfer of incarcerated individuals during the pandemic, as well as a vaccine rollout that did not prioritize corrections officers.
In the letter to Wolf, Eckenrode wrote that he thought the number of corrections staff who had tested positive was even higher than reported, and that they may “have attained natural immunity.”
“Yet for some unknown reason, natural immunity is being ignored by federal health officials and this administration,” Eckenrode wrote.
A study by Emory University released last month suggested that those who’ve survived COVID-19 can have a “durable and strong” resistance to the virus.
A different study released by the federal Centers of Disease Control and Prevention this week found, however, that those without vaccines had more than twice as high a chance of being reinfected with COVID-19 as someone who is vaccinated.
Krys Johnson, an epidemiologist at Temple University, pointed to the latter study in an email disputing the notion that immunity after getting COVID could replace a shot.
“From a business perspective, regardless of previous infection status, it make sense for any institution to require vaccinations to ensure continuity of service provided,” Johnson said. “From a humane standpoint, it also makes sense to minimize human suffering among staff and incarcerated people by requiring vaccination for all people who are part of the corrections system.”
Lyndsay Kensinger, a spokesperson for Wolf, added that the correction’s officers’ opposition was “extremely disappointing.”
“Getting vaccinated is the most simple and effective way they can protect the public and themselves from the COVID-19 pandemic,” Kensinger said in an email.
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