California can require correctional officers to get COVID vaccine, judge rules

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A Kern County Superior Court judge on Friday reinstated a state order that requires certain prison guards to be vaccinated against COVID-19.

Judge Bernard Barmann’s ruling affects only correctional officers who work in or around health care settings in prisons. The California Department of Public Health on Aug. 19 ordered them — along with all other prison and jail employees who work in health care settings — to get vaccinated.

Last week, a day before all the prison health care employees were supposed to be fully vaccinated, Barmann paused the requirement for the correctional officers but not the other employees. He said he wouldn’t force guards to get vaccinated while he weighed arguments from the California Correctional Peace Officers Association against the vaccination requirement.

On Friday, Barmann reversed course. He rejected the union’s legal arguments, denying them a preliminary injunction, and dissolved his temporary order from last week.

“This is an unfortunate situation. We’re all dealing with this global pandemic which has gripped the planet for more than a year and a half now,” Barmann said. “And the state of California is taking steps to address it, and unfortunately in the nature of such circumstances, something has to give.”

“The court is not in a position to second guess the state as to how to address the pandemic and satisfy their obligations to inmates in their care in our state prison system,” Barmann added.

As of Oct. 22, 241 inmates and 46 employees have died of COVID-19, according to the department’s case tracker. By Oct. 7, 60% of prison employees had been vaccinated.

The correctional officers’ union can appeal Barmann’s decision, but is also fighting a separate, broader vaccination requirement in an Oakland federal court.

U.S. District Judge Jon S. Tigar last month ordered the state to come up with a plan to vaccinate all prison employees — not just those in health care settings — along with inmates who work outside of the prison. Tigar’s order aligned with a recommendation from J. Clark Kelso, a federal receiver who oversees medical care inside the prisons.

Gov. Gavin Newsom and the corrections department filed a notice that they plan to appeal Tigar’s order. The correctional officers’ union, which donated $1.75 million to Newsom’s campaign to fight a Sept. 14 recall effort, has also argued against the vaccine order in the federal court case.

The state’s Aug. 19 order from the health department tightened prior vaccination requirements by eliminating an option for certain employees to get tested twice a week instead of getting the vaccine. The only exemptions under the order are for religious or medical reasons.

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