PRISON LAW OFFICE
General Delivery, San Quentin, CA 94964
Telephone (510) 280-2621  Fax (510) 280-2704
www.prisonlaw.com

Director:
Donald Specter

Managing Attorney:
Sara Norman

Staff Attorneys:

VIA EMAIL ONLY
June 14, 2021
J. Clark Kelso
Receiver
RE:

Rana Anabtawi
Laura Bixby
Patrick Booth
Steven Fama
Alison Hardy
Sophie Hart
Jacob Hutt
Rita Lomio
Margot Mendelson

COVID-19 Staff Vaccination Mandate

Dear Clark:
We write in response to your May 21 request for our view on “on the legality of, pros and
cons of, and evidentiary basis for or against requiring CDCR staff – both health care and custody”
to be vaccinated.
Over the last fifteen months, more than 69,000 people who live and work in California
prisons have been infected by the novel coronavirus, at least 250 have died, and an untold number
are suffering and will continue to suffer debilitating, long-term effects from the disease. Staff
remain the primary vector for COVID-19 infections in the prison system, where four prisons are
experiencing outbreaks. Although safe and effective vaccines have been widely available to staff
in all prisons since January 2021, only about half have chosen to be vaccinated. The remainder
continue to work in direct physical proximity to incarcerated people and each other and expose
them to an unacceptably high risk of serious harm and death. At some prisons, the number of staff
who are unvaccinated is shockingly high; at High Desert State Prison, for example, 75% of staff
are unvaccinated.
To protect the incarcerated population as well as the staff, including the many who are
immunocompromised and the many incarcerated individuals who, because of their disabilities or
medical conditions, must come in frequent, direct contact with staff, you must direct that all staff
who work in the prisons be vaccinated immediately, subject to the usual exemptions and
accommodations required under state and federal law.
The public health basis and the life-saving benefits of such action are beyond dispute.1
That is why employers, including at least 43 California colleges and universities, large healthcare
1

See, e.g., Eric Reinhart & Daniel L. Chen, Carceral-Community Epidemiology, Structural
Racism, and COVID-19 Disparities, Proceedings of the Nat’l Academy of Sciences, Vol.
118 (May 2021) (“[Carceral] facilities function as disease incubators, providing sites for
easy viral and bacterial replication with a ready supply of tightly packed bodies that are
rendered even more vulnerable by inadequate healthcare, poor living conditions, and
Board of Directors
Penelope Cooper, President  Michele WalkinHawk, Vice President  Marshall Krause, Treasurer
Harlan Grossman • Christiane Hipps  Margaret Johns  Cesar Lagleva  Jean Lu 
Laura Magnani • Michael Marcum  Ruth Morgan  Seth Morris  Vishal Shah

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 2
providers, meat-packing plants, the Prison Law Office, and other law firms, already have
required, or very soon will require, that employees be vaccinated.2
Some employers may have the luxury of waiting to enact a vaccination mandate. You do
not. There are no telework, social distancing, or other strategies that alone or in combination
adequately reduce the substantial risk of serious harm and death to the almost 100,000 people
confined in state prisons, not to mention the over 65,000 staff who work in the prisons and live in
the outside community. The essential work of CCHCS and CDCR institution staff to operate the
prison and run programming simply cannot be done over Zoom.
There is no time to monitor “trends.” Delay cannot be justified based on current, relatively
low case counts. By the time the virus strikes again, it will be too late, as we have seen time and
time again during the pandemic. And there is evidence throughout the world that the virus will
strike again. Moscow is now on lockdown and the United Kingdom has postponed its reopening
because of new outbreaks of a more contagious variant. Pockets of infection have been
discovered in California, including Marin County. It takes only one infected staff person to seed
an outbreak and/or cause a large-scale shutdown of prison operations. Indeed, many of the new
staff infections have been identified as variants, which may have higher transmissibility. You
cannot vaccinate yourself out of an active outbreak; the virus spreads too rapidly, and the prisons

2

associated comorbidities”); CDC, COVID-19 Vaccine FAQs in Correctional and Detention
Centers (June 1, 2021) (“Outbreaks in correctional and detention facilities are often
challenging to control” and may “lead to community transmission outside of the facility”).
This includes the Los Angeles Unified School District, Sunrise Senior Living, University
of Pennsylvania Health System, Houston Methodist Hospital, Boys & Girls Clubs of the
SF Peninsula, California College of the Arts, California Lutheran University, California
Polytechnic State University (San Luis Obispo and Pomona), California State University
(Bakersfield, Chico, Fresno, Fullerton, Long Beach, Los Angeles, Northridge, Sacramento,
San Bernardino, San Marcos, Maritime Academy, Channel Islands, Dominguez Hills, East
Bay, Monterey Bay, Stanislaus), Harvey Mudd College, Humboldt State University,
Samuel Merritt University, San Diego State University, San Francisco State University,
San Jose State University, Sonoma State University, Southwestern College, Stanford
University, University of California (Berkeley, Davis, Irvine, Los Angeles, Merced,
Riverside, San Diego, San Francisco, Santa Barbara, Santa Cruz), University of La Verne,
University of San Francisco, University of Southern California, Whittier College, JB USA
Holdings, Inc. (meat packing), Lastique International Corp. (plastics distributor), Davis
Wright Tremaine LLP, and Sanford Heisler Sharp LLP. Other employers require new hires
to be vaccinated, including United Airlines, Delta Airlines, employees of the Doña Ana
Detention Center, and senior living operators ALG Senior, Altria Senior Living, Civitas
Senior Living, and Juniper Communities, Silverado.

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 3
function as “disease multipliers” and “epidemiological pumps.”3 As you stated earlier this year, if
the coronavirus were building its ideal home, it would build a prison. Firm leadership and swift
action are urgently needed.
EFFICACY OF INCENTIVES AND VOLUNTARY VACCINATION PROGRAMS
The CCPOA asks, “at this point in time,” that this matter be delayed indefinitely and
counsels that “[m]ore time” be given to wait and see if over 30,400 staff will change their minds.4
But we cannot continue to inch along under a danger of this magnitude. We are long past the
wait-and-see-and-hope-for-the-best approach. There are no data-driven guideposts or projections
for whether or when incentives will result in full staff vaccination. Indeed, no metrics for efficacy
have ever been offered. The data we do have, both in CDCR and in the larger community,
however, indicates that a voluntary program will not achieve the full vaccination needed.
Put simply, measures to encourage voluntary vaccination have not increased staff
vaccinations on the scale, or with the speed, necessary to protect our clients or the surrounding
communities. Incentives of some form have been in place since December 2020. Even with them,
vaccination rates remain low. Between May 14 and June 4, 2021, the number of institution staff
who received a first dose of a vaccine went up by only 2%.5 Assuming that rate remains constant,
which is doubtful as remaining unvaccinated staff likely are more resistant to being vaccinated,
all staff at High Desert will have received a first dose of the vaccine by July 2023, over two years
from now.6 At CHCF and CMF, which have close to the highest rates of partially or fully
vaccinated staff (63% and 62%, respectively), it would take until July 2022. And this does not
address whether staff will voluntarily keep up to date on any necessary booster shots.

3

4
5

6

See Eric Reinhart & Daniel L. Chen, Carceral-Community Epidemiology, Structural
Racism, and COVID-19 Disparities, Proceedings of the Nat’l Academy of Sciences, Vol.
118 (May 2021); see also Eric Reinhart & Daniel L. Chen, Incarceration and Its
Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail, Health
Affairs Vol. 39, No. 8 (June 2020) (“Existing conditions in jails and penitentiaries make
infection control particularly difficult, putting inmates at unconscionable and perhaps
unconstitutional risk.”).
See ECF 3591 at 4 (emphasis in original).
See Email from Suzanne Benavidez, Special Assistant to Director Joseph Bick, M.D.,
California Correctional Health Care Services, PLO Covid Data Summary for 06/04/21
(June 4, 2021).
This is calculated based on the staff vaccination rates set forth in CDCR’s online
Vaccination Tracker as of June 10, 2021. It does not include people who were vaccinated
by a community healthcare provider and did not report their vaccination status.

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 4
The mitigation efforts cited by the CCPOA have been in place for months. This includes
CCPOA’s admirable public service videos, released in January 2021; supplemental paid sick
leave, enacted by the legislature in March 2021; COVID Mitigation Advocacy Program, finalized
in April 2021; temporary relief from routine COVID-19 testing, in effect in May and June 2021;
and additional vaccine clinics at each institution, in effect in May 2021.7
The CCPOA’s only new suggestions, one-time bonuses and counseling from a medical
professional, likely would not result in the number of staff vaccinations needed without needless
delay and, in any event, could be done in tandem with a mandatory program.8 Extensive
information on the safety and efficacy of the vaccines from medical professionals has been widely
available, and staff would be offered individual consultations under a mandatory vaccination
program.9 And, on May 18, 2021, all staff were informed of cash prizes that people who have
been vaccinated, or who sign a declination form, are eligible for.10 This is in addition to the state’s
$116.5 million Vax for the Win program, “which includes $50 incentive cards to newly
vaccinated residents and cash prize drawings for all who have received at least one dose.”11
The low efficacy of incentives to date is not unexpected. Medical researchers believe that
“[i]ncentives alone are unlikely to deliver the population immunity that will end the pandemic.”12
As a result, they recommend that “organizations that take care of patients,” such as prisons,
“mandate Covid vaccination for their employees”:
No intervention strategy is more effective than requiring vaccination,
and our institution, Penn Medicine, recently announced that all health
7
8
9
10

11

12

See ECF 3591 at 2, 5-6.
See ECF 3591 at 8-9.
See, e.g., ECF 3539, Joint CMC Statement at 4-5 (Jan. 26, 2021) (Defendants’ Position);
ECF 3548, Joint CMC Statement at 5-6 (Feb. 12, 2021) (Defendants’ Position).
See Email from CDCR CCHCS COVID-19, Vaccine rewards program (May 18, 2021).
Bonuses, unfortunately, may have unintended consequences. This is because “booster
shots will probably be required down the line,” and “[o]ffering incentives now may set a
costly and undesirable precedent, causing people to expect—and wait for—an incentive
the next time around.” See Kevin G. Volpp & Carolyn C. Cannuscio, Incentives for
Immunity—Strategies for Increasing Covid-19 Vaccine Uptake, New England Journal of
Medicine (May 26, 2021).
Office of Governor Newsom, Governor Newsom Draws First 15 Winners in California’s
Vax for the Win Giveaway (June 4, 2021), https://www.gov.ca.gov/2021/06/04/governornewsom-draws-first-15-winners-in-californias-vax-for-the-win-giveaway/.
Kevin G. Volpp & Carolyn C. Cannuscio, Incentives for Immunity—Strategies for
Increasing Covid-19 Vaccine Uptake, New England Journal of Medicine (May 26, 2021).

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 5
system employees will be required to be vaccinated. U.S. health care
workers are declining Covid-19 vaccination at alarming rates. In one
nursing home, although 90% of the residents had been vaccinated,
only half of the employees had followed suit; one of the unvaccinated
employees infected multiple residents, and one vaccinated and two
unvaccinated residents died. Such preventable lapses in safety should
be unacceptable to anyone in the health care profession. Vaccination
mandates in schools and workplaces—especially in high-contact
settings such as meat-packing plants and prisons—could
substantially reduce the future toll of Covid-19 in the United States.13
That recommendation is consistent with studies of influenza vaccination strategies, which
have found mandatory vaccination programs to be “more effective at increasing coverage levels
than any voluntary strategy.”14 “The best available evidence suggests that even when health care
organizations implement aggressive, labor-intensive voluntary influenza vaccination programs for
their employees, they are rarely able to achieve vaccination rates higher than 70%.”15
One study found that years of “extensive publicity, incentives and educational programs”
at a large healthcare organization with approximately 26,000 employees resulted in an influenza
vaccination rate below the target goal of 80%.16 After influenza vaccination was made a condition
of employment for all employees, 98.4% were vaccinated.17 An additional 0.35% received a

13
14

15
16
17

Id. (emphasis added).
See Alexandra M. Stewart & Marisa A. Cox, State Law and Influenza Vaccination of
Health Care Personnel, Vaccine, Vol. 31, 827-832, 829-830 (2013) (“Health care
employers have adopted various strategies to encourage HCP to voluntarily receive
influenza vaccination. However, these measures have failed to achieve 90% coverage
levels. As a result, beginning in 2004, medical care facilities and local health departments
began to require designated HCP to receive influenza vaccination as a condition of
employment. Today, hundreds of facilities throughout the country have developed and
implemented similar policies. Mandatory vaccination programs have been endorsed by
professional and nonprofit, state health, and public health entities. These programs have
been more effective at increasing coverage levels than any voluntary strategy, with some
health systems reporting coverage levels up to 99.3%.” (internal footnotes omitted)).
Abigale L. Ottenberg et al., Vaccinating Health Care Workers Against Influenza, Am. J. of
Public Health, Vol. 101, 212-16, 212-13 (Feb. 2011).
Hilary M. Babcock et al., Mandatory Influenza Vaccination of Health Care Workers,
Clinical Infectious Diseases, Vol. 50, 459-464, 460 (Feb. 2010).
Id. at 460-62.

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 6
religious exemption, 1.24% received a medical exemption, and only eight people, or 0.03% of
staff, were terminated for noncompliance.18
The study results are consistent with CCPOA’s belief that “few employees not near
retirement will resign” if COVID-19 vaccines are mandated.19 It also is consistent with the
experience of Houston Methodist Hospital, which required that its employees be vaccinated
against COVID-19 by June 7, 2021. Only about 0.7% (or 178) of the over 26,000 employees have
been suspended for failure to comply with the policy.20
LEGAL BASIS AND REQUIRED EXEMPTIONS AND ACCOMMODATIONS
A staff vaccination mandate is well supported by state and federal law. The recent decision
of the Superior Court for the County of Alameda in Kiel v. The Regents of the University of
California, No. HG20-072843 (Super. Ct. Dec. 4, 2020), is instructive. There, the Court
considered the lawfulness of an Executive Order issued by the President of the University of
California conditioning access to University property on flu vaccination.21 The Court denied
plaintiffs’ motion for a preliminary injunction.22 The Court observed that the U.S. Supreme Court
held over a century ago in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905),
“that a state’s mandatory vaccination statute was a lawful exercise of the state’s police power to
protect the public health and safety.”23 And, “[s]ince Jacobson, courts have repeatedly cited
Jacobson and upheld mandatory vaccination laws over challenges predicated on the First
Amendment, the Equal Protection Clause, the Due Process Clause, the Fourth Amendment,
education rights, parental rights, and privacy rights.”24 In fact, the Court noted that it “is unaware
of any case in which a court has struck down a mandatory immunization imposed as a condition
. . . of access to property for the purpose of employment.”25
The same analysis applies here. In fact, the goal of the Executive Order considered in Kiel
is almost identical to the one that would animate a COVID-19 vaccination mandate in California
prisons: “to reduce the likelihood of severe disease . . . and in turn reduce the likelihood that our
18
19
20
21
22
23
24
25

Id. at 461.
See ECF 3591 at 12.
Bill Chappell, The Clock’s Ticking for 178 Hospital Workers Suspended for Not Getting
Vaccinated, NPR (June 10, 2021).
Kiel v. The Regents of the Univ. of Cal., No. HG20-072843 at 2 (Super. Ct. Dec. 4, 2020).
Id. at 7-8.
Id. at 8.
Id. at 9 (collecting cases, including Zucht v. King, 260 U.S. 174, 175-77 (1922) (“it is
within the police power of a state to provide for compulsory vaccination”)).
Id. at 14.

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 7
health system will be overwhelmed (in more in [sic] than just hospital bed capacity).”26 The Court
also found that the evidence “amply supports that requiring flu vaccination is more likely to
reduce transmission of the flu on UC property than proceeding under looser rules,” including
mask-wearing—something that certainly is true of existing COVID-19 vaccinations.27
That the vaccines are authorized by the FDA for emergency use under 21 U.S.C.
§ 360bbb-3 does not change the analysis. Indeed, a federal court recently rejected a legal
challenge on that basis and upheld Houston Methodist Hospital’s COVID-19 vaccination policy,
noting that “Methodist is trying to do their business of saving lives without giving them the
COVID-19 virus. It is a choice made to keep staff, patients, and their families safer.”28 The
California Department of Public Health has recognized that “COVID-19 vaccines have gone
through extensive clinical trials and the most intensive safety review in U.S. history,” and are
“highly effective” at preventing serious illness from COVID-19.29
As with the Executive Order reviewed in Kiel, the COVID-19 vaccination mandate should
be subject to medical exemptions and religious and disability accommodations required under
state and federal law. That is consistent with recent guidance from the U.S. Equal Employment
Opportunity Commission (EEOC).30 The CCPOA attempts to make a straightforward mandate
26
27

28

29
30

Id. at 12.
Id. at 11. Indeed, over four months ago, Defendants represented that they would reevaluate
their position on a vaccination mandate based, among other things, on “the outcome of
ongoing scientific studies regarding how effectively the vaccine reduces not just viral
infection, but viral transmission.” ECF 3548, Joint CMC Statement at 5 (Feb. 12, 2021).
The Centers for Disease Control and Prevention now recognize that “[a] growing body of
evidence indicates that people fully vaccinated with an mRNA vaccine (Pfizer-BioNTech
and Moderna) are less likely to have asymptomatic infection or to transmit SARS-CoV-2
to others.” CDC, Science Brief: COVID-19 Vaccines and Vaccination (May 27, 2021).
Bridges v. Houston Methodist Hospital, No. H-21-1774 at 2-4 (S.D. Tex. June 12, 2021)
(rejecting argument that “no one can be mandated to receive ‘unapproved’ medicines in
emergencies, and . . . no currently-available vaccines have been fully approved by the
Food and Drug Administration”).
Cal. Dep’t of Public Health, Vaccinate All 58, Let’s Get to Immunity (last visited June 11,
2021), https://www.vaccinateall58.com/.
EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act,
and Other EEO Laws (May 28, 2021), https://www.eeoc.gov/wysk/what-you-shouldknow-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (“The federal EEO
laws do not prevent an employer from requiring all employees physically entering the
workplace to be vaccinated for COVID-19, subject to the reasonable accommodation
provisions of Title VII and the ADA and other EEO considerations”). State law imposes
similar requirements. See California for All, Vaccines (June 11, 2021),

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 8
unpalatable by grafting unnecessary and time-consuming bureaucratic measures to it in the name
of implementing antidiscrimination laws.31 But that is nothing more than scare tactics. The state
already has processes in place to evaluate requests for accommodations and exemptions under the
same state and federal laws. Those existing processes can be used here.
Finally, the suggestion, as CCPOA has made and others may, to delay a needed mandate
for “several months” of bargaining also is misplaced.32 As the CCPOA acknowledges, “[t]he Dills
Act permits the State to act first and bargain later in a bona fide emergency.”33 The COVID-19
pandemic certainly qualifies as “an act of God, natural disaster, or other emergency or calamity
affecting the state, and which is beyond the control of the employer or recognized employee
organization” under both state and federal law.34 In any event, the prospect of drawn-out
negotiations militates in favor of quick action, not further delay.

31
32
33

34

https://covid19.ca.gov/vaccines/ (“May an employer require COVID-19 vaccination for
all employees entering the workplace? Yes, if certain requirements are met. Under the
ADA, an employer may require all employees to meet a qualification standard that is jobrelated and consistent with business necessity, such as a safety-related standard requiring
COVID-19 vaccination. However, if a particular employee cannot meet such a safetyrelated qualification standard because of a disability, the employer may not require
compliance for that employee unless the employer can demonstrate that the individual
would pose a ‘direct threat’ to the health or safety of the employee or others in the
workplace.” (citing to EEOC, What You Should Know About COVID-19 and the ADA,
the Rehabilitation Act, and Other EEO Laws)).
ECF 3591 at 12-14.
Id. at 11.
Id. at 12 (citing Gov’t Code § 3516.5 (“In cases of emergency when the employer
determines that a law, rule, resolution, or regulation must be adopted immediately without
prior notice . . . the administrative officials . . . shall provide such notice and opportunity to
meet and confer in good faith at the earliest practical time following the adoption of such
law, rule, resolution, or regulation.”).
Gov’t Code § 3523(d); see, e.g., Exec. Dep’t, State of California, Proclamation of a State
of Emergency (Mar. 4, 2020); U.S. Dep’t of Health & Human Services, Office of the
secretary, Determination of Public Health Emergency (Feb. 7, 2020) (“[P]ursuant to
section 564 of the FD&C Act, I determined that there is a public health emergency that has
a significant potential to affect national security or the health and security of United States
citizens living abroad and that involves a novel (new) coronavirus (nCoV) first detected in
Wuhan City, Hubei Province, China in 2019 (2019-nCoV).”); FDA, Emergency Use
Authorization for Vaccines Explained (Nov. 20, 2020),https://www.fda.gov/vaccinesblood-biologics/vaccines/emergency-use-authorization-vaccines-explained (“FDA
recognizes the gravity of the current public health emergency and the importance of

J. Clark Kelso, Receiver
Re: COVID-19 Staff Vaccination Mandate
June 14, 2021
Page 9
In our view, the Eighth Amendment, requires you “to take adequate steps to curb the
spread of disease within the prison system.”35 As the last year and a quarter has demonstrated the
vaccine is the most effective and safe way to prevent the spread of infection and to mitigate
disease caused by COVID-19 in prisons. We do not now know whether those who live and work
in CDCR will be assaulted by another surge, perhaps caused by a more infectious variant. What
we do know for a fact is that mandating the vaccine for staff will help enormously in reducing the
risk of further disease and death.36 Therefore, we urge you to adopt a policy requiring all staff to
be vaccinated absent medical exemptions and the need for religious and disability
accommodations.
If you would like to discuss this issue or need any further information, we expect that you
will let us know.
Sincerely,
/s/
Donald Specter
Rita Lomio

cc:

35

36

Counsel in Plata, Armstrong, Coleman, and Clark
Armstrong Court Expert
Coleman Special Master
Counsel for CCPOA

facilitating availability, as soon as possible, of vaccines to prevent COVID-19—vaccines
that the public will trust and have confidence in receiving.”).
Coleman v. Newsom, 455 F. Supp. 3d 926, 932 (E.D. Cal./N.D. Cal. 2020). “Indeed,
disease control is one of the areas in which the Plata court previously concluded that
Defendants fell short.” Id.
Helling v. McKinney, 509 U.S. 25, 33 (1993) (“We have great difficulty agreeing that
prison authorities may not be deliberately indifferent to an inmate's current health
problems but may ignore a condition of confinement that is sure or very likely to cause
serious illness and needless suffering the next week or month or year.”)