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Oregon Prisoners Face Off in Guards’ Legal Fight Over COVID-19 Vaccination Mandate

As of December 1, 2021, just 99 Oregon employees—0.25% of the state’s 40,000 workers, had been fired for violating a mandate that they must be vaccinated against COVID-19. It was unclear how many of those were fired from the state Department of Corrections (DOC), though six weeks earlier just 4% of its roughly 4,500 employees had failed to get vaccinated or to get an exemption as of October 16, 2021.

At that time, 16% of DOC workers had been approved for religious exemptions, with another 80% vaccinated. That put the employee vaccination rate near that of prisoners in DOC. It also brought to a muted conclusion a fight begun six weeks earlier by the union representing state prison guards, the Association of Oregon Corrections Employees (AOCE), one which prisoners also waded into.

On September 13, 2021, AOCE filed suit alleging its member guards would be irreparably harmed if the state proceeded with mandatory vaccinations, which Gov. Kate Brown (D) had set a deadline for all executive branch employees to have—including those in DOC—by October 18, 2021.

Brown’s deadline was eventually pushed back to November 30, 2021. It also provided a narrow exception “due to disability, qualifying medical condition, or a sincerely held religious belief.” Any employee failing to meet one of those requirements would be prohibited from engaging in work for the Executive Branch and would be subject to “personnel consequences up to and including separation from employment.”

In response several guards allegedly went to a local church that gave them a certificate of religious exemption in exchange for a small fee. Those that didn’t, along with other state employees, decided to challenge the order on other grounds. A total of ten lawsuits were filed, two in federal court. All of them failed to convince a judge that Oregon employees had a right to refuse vaccination in light of the state’s interest in protecting its citizens.

Yet those losses weren’t foreseeable in the immediate aftermath of Brown’s August 2021 announcement. On September 8, 2021, Portland Mayor Ted Wheeler (D) said that his city would not enforce COVID-19 vaccine mandates against its police officers, citing state law that says workers “shall not be required as a condition of work to be immunized” unless the requirement comes from “state law, rule, or regulation”—which he didn’t think included an executive order.

The following day, on September 9, 2021, Multnomah County Chair Deborah Kafoury cited the same statute when announcing that the mandate would not be enforced against employees of the county sheriff’s office or its probation and parole officers.

So AOCE had the wind at its back when it filed suit in state Circuit Court on September 13, 2021, on behalf of seven guards—Elena M. Martinez, Steven H. Weltz, Matthew B. Gushard, Kelly Tourville, Levi A. Blachly, Stephen T. Cruz, and Jacob A. Mckinney—alleging that the governor’s mandate illegally impacted “the terms and conditions of their employment” under the union’s collective bargaining agreement (CBA) with DOC and Oregon Corrections Enterprises (OCE), a semi-independent state agency that employs AOCE members to oversee prisoner slave labor operating DOC businesses.

The guards, who quickly became known as the ‘COVID-7,’ sought to represent a putative class of “similarly situated AOCE members” who “have a business relationship with DOC and OCE” to which Brown “is not a party,” making her executive order a violation of the state constitution, they said, because it “intentionally interfered with Plaintiffs’ business relationship with DOC and OCE by unilaterally altering the parties’ CBA.”

The guards even engaged in a bit of fear-mongering, reporting that OCE customers “will not accept service from [unionized] staff who are not vaccinated,” which meant they may “lose too many customers” and “have to lay off” staff members, including “those who have religious or medical exceptions” to the vaccine mandate.

They also reached out to two prisoners at Oregon State Correctional Institution (OSCI) to amplify their objections to the mandate. One, Robert Haden King, filed an affidavit claiming he personally knew “41 correctional officers who will resign or be terminated if the vaccine mandate is enforced,” a “sudden drop” in staff strength that “would present serious safety concerns” and make a prison lockdown “likely.” King was transferred to OSCI from New Hampshire State Prison after being labeled a “snitch” there. [See: PLN, Feb. 2004, p.10.] He had been transferred to several out of state prisons in the past for being a notorious informant in Oregon. See: King v. Brown, 8 F.3d 1403 (9th Cir. 1993).

In a second affidavit, prisoner Jeff Traxtle also claimed to “personally know about 30 correctional officers who are declining the COVID-19 vaccine despite the vaccine mandate,” so he feared the prison system would “lose anywhere between 30-40%” of its guard staff.

With guards “fighting amongst themselves about the vaccine mandate,” Traxtle added, “[prisoners] are taking advantage of the situation, which I assume will only get worse after we lose a significant number of correctional officers.”

But other prisoners disagreed. Attorney Nadia H. Dahab filed a Motion to Intervene as Defendants in the guards’ suit on behalf of six other prisoners who are also the plaintiffs in a class-action that won a federal court order requiring DOC to vaccinate prisoners in its custody. [See: PLN, May 2021, p.30.]

On October 13, 2021, with the deadline drawing closer, DOC said 50% of guards had been fully vaccinated. Three days later, the rate had jumped above 79%. Another 16% had received an exemption. Ten days after that, on October 26, 2021, the Court denied Plaintiffs’ motion for a temporary restraining order to halt the vaccine mandate. See: Association of Oregon Corrections Employees v. Brown, Or. Cir. (Marion Co.), Case No. 21CV36703.  

Additional sources: Eugene Register-Guard, Eugene Weekly, KEZI, KGW, U.S. News

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Related legal cases

Association of Oregon Corrections Employees v. Brown

King v. Brown