All California prison guards, staff must get COVID-19 vaccine, federal judge rules

A federal judge on Monday ordered that all correctional officers and staff entering California’s prisons be vaccinated.

The judge sided with a federal court-appointed receiver overseeing the medical care there and rejected efforts to block it by Gov. Gavin Newsom and the prison guards union.

U.S. District Judge Jon Tigar’s order covers all 34 of California’s prisons and does allow for religious and medical exemptions to be sought by the employees.

“Once the virus enters a facility, it is very difficult to contain, and the dominant route by which it enters a prison is through infected staff,” the judge wrote in his order explaining his reasoning.

Federal receiver J. Clark Kelso warned it was the only way to prevent another deadly outbreak like that at San Quentin State Prison, which killed 28 inmates and one officer, noting 11 staff members across the state have died of COVID-19 since August.

The judge also ordered that inmates who want in-person visits or who work outside prisons, including inmate firefighters, must also be fully vaccinated or have a religious or medical exemption.

“All agree that a mandatory staff vaccination policy would lower the risk of preventable death and serious medical consequences among incarcerated persons,” Tigar wrote. “And no one has identified any remedy that will produce anything close to the same benefit.”

“We are evaluating the court’s order at this time to determine next steps,” the state Department of Corrections and Rehabilitation statement said in a statement late Monday.

“We respectfully disagree with the finding of deliberate indifference, as the department has long embraced vaccinations against COVID-19, and we continue to encourage our staff, incarcerated population, volunteers and visitors to get vaccinated,” the statement said.

An appeal is expected from the correctional officers union, whose attorney during a court hearing Friday hinted that a challenge was likely as the union joined state lawyers in opposing the proposal by Kelso.

Tigar on Monday called the state officials’ actions commendable but said he is acting “because they refuse to do what the undisputed evidence requires.”

The judge has broad authority to direct medical care within California prisons under a long-running lawsuit over healthcare provisions.

Since the beginning of the COVID-19 pandemic, Newsom has championed some of the nation’s toughest coronavirus restrictions and called for vaccine mandates for all health workers.

But Newsom and the Department of Corrections and Rehabilitation have continued to fight the request to mandate vaccinations for all corrections guards and staff. The department oversees prisons and about 99,000 inmates.

Kelso and his medical staff argue that the virus, which they believe is mostly spread from prison staff, has caused more than 50,000 inmate infections and more than 20,000 employees to test positive for the virus. That has resulted in the deaths of 240 inmates statewide and 39 staff members.

“We do really have a problem of continuing major outbreaks,” Kelso told Tigar during a virtual hearing in Oakland.

Explaining that the coronavirus has repeatedly spread from staff to the incarcerated, he said that six other states and the federal prison system have recently mandated vaccines for all prison employees. At the High Desert State Prison in Susanville, Calif., for example, only 29% of the employees are fully vaccinated.

Newsom’s office last week said the governor has “led California to the lowest transmission rate and highest vaccinations in the nation by following scientific consensus and public health guidelines.”

It points out that California was the first state to mandate vaccination or testing for all its state workers, including correctional employees, and a state order covering health workers being vaccinated covers three medical prisons. Newsom’s office said the state’s public health officer has already ordered employees regularly assigned to provide healthcare services to be fully vaccinated by Oct. 14.

“The California Department of Corrections and Rehabilitation was one of the first state agencies to offer vaccinations to staff, beginning at the end of 2020,” the statement said. “Additionally, California also led the nation in providing early access to vaccines for incarcerated people. Currently, 76% of the incarcerated population has been fully vaccinated, with 56% of staff vaccinated and another 4% have received at least one dose.”

Kelso repeatedly said the state’s actions simply did not cover enough people.

The judge added the requirement for those imprisoned after the guards union repeatedly noted that some inmates had declined the vaccine,

Gregg Adam, an attorney for the California Correctional Peace Officers Assn., argued that the state was not indifferent to the prisoners because it has offered the vaccine to 99% of inmates and that nearly a quarter of those have refused inoculation. Adam warned that the implementation of a vaccine mandate among the guards and staff could lead to a significant number of employees being unavailable for work and place extraordinary pressure on the prisons.