HomeMy WebLinkAbout225-21 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 225-21
File Number: 2021-0683
MAYOR JORDAN TO REQUIRE ALL CITY EMPLOYEES TO SUBMIT WEEKLY
TESTS OR PROOF OF VACCINATION:
A RESOLUTION TO REQUEST THAT MAYOR JORDAN INVESTIGATE A POTENTIAL
REQUIREMENT THAT ALL CITY EMPLOYEES TO SUBMIT WEEKLY RAPID PCR OR
ANTIGEN COVID-19 VIRUS TESTS TO HUMAN RESOURCES UNLESS THEY HAVE
SUBMITTED PROOF OF COMPLETE VACCINATION
WHEREAS. the City Board of Health is very concerned about the highly contagious and rapidly
spreading Delta Variant of Covid-19 virus within the unvaccinated population; and
WHEREAS, city staff should be protected as much as possible from being infected with this
dangerous Delta Variant from any other city employee; and
WHEREAS, a weekly rapid PCR or Antigen Covid-19 virus test can be obtained free of charge for
an insured city employee from Walgreens and other pharmacies and clinics and the employee can
provide the results to Human Resources to help ensure an infected city employee properly quarantines
rather than exposing other city employees and citizens to this deadly virus; and
WHEREAS, fully vaccinated city staff pose much less of a threat of becoming infected or infecting
others with the Delta Variant of Covid-19 and so should be exempted from the weekly testing
requirement unless they are experiencing Covid-19 symptoms.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville. Arkansas hereby requests that. during this
Page 1 Printed on 918121
Resolution: 225-21
File Number: 2021-0683
period of high transmission rates. hospitalizations and deaths. Mayor Jordan should explore a City
policy for all employees that would require submission of a weekly testing report of a rapid PCR or
Antigen test for Covid-19 virus to the Human Resources Department for all employees who do not
present their valid vaccination cards showing they are fully vaccinated (including any required booster
vaccinations) to Human Resources.
PASSED and APPROVED on 9/7/2021
Attest:
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Kara Paxton, City Clerk Treasure'
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Page 2 Printed on 918121
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2021-0683
Agenda Date: 9/7/2021 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Resolution
Agenda Number: C.1
MAYOR JORDAN TO REQUIRE ALL CITY EMPLOYEES TO SUBMIT WEEKLY TESTS OR
PROOF OF VACCINATION:
A RESOLUTION TO REQUEST THAT MAYOR JORDAN REQUIRE ALL CITY EMPLOYEES TO
SUBMIT WEEKLY RAPID PCR OR ANTIGEN COVID-19 VIRUS TESTS TO HUMAN RESOURCES
UNLESS THEY HAVE SUBMITTED PROOF OF COMPLETE VACCINATION
WHEREAS, the City Board of Health is very concerned about the highly contagious and rapidly spreading
Delta Variant of Covid-19 virus within the unvaccinated population; and
WHEREAS, city staff should be protected as much as possible from being infected with this dangerous Delta
Variant from any other city employee; and
WHEREAS, a weekly rapid PCR or Antigen Covid-19 virus test can be obtained free of charge for an
insured city employee from Walgreens and other pharmacies and clinics and the employee can provide the
results to Human Resources to help ensure an infected city employee properly quarantines rather than exposing
other city employees and citizens to this deadly virus; and
WHEREAS, fully vaccinated city staff pose much less of a threat of becoming infected or infecting others with
the Delta Variant of Covid-19 and so should be exempted from the weekly testing requirement unless they are
experiencing Covid-19 symptoms.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby requests that, during this period of
high transmission rates, hospitalizations and deaths, Mayor Jordan establish a City policy for all employees that
would require submission of a weekly testing report of a rapid PCR or Antigen test for Covid-19 virus to the
Human Resources Department for all employees who do not present their valid vaccination cards showing they
are fully vaccinated (including any required booster vaccinations) to Human Resources.
City of Fayetteville, Arkansas Page 1 Printed on 91812021
41
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
CC: Susan Norton, Chief of Staff
Paul Becker, Finance Director
Missy Cole, HR Director
FROM: Kit Williams, City Attorne}�-J ,
DATE: August 31, 2021
RE: Council Member Petty"s Resolution For Weekly Covid-19 Test
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
I have been asked whether Council Member Matthew Petty's Resolution
requesting a city requirement for employees to furnish the results of a weekly rapid
PCR or antigen test for Covid-19 during this period of high transmission rates,
hospitalization and deaths from the Delta variant violates Act 977 of 2021. I do not
believe such a city policy would violate that Act.
The Resolution, if made into a City Policy by Mayor Jordan, is a weekly Covid-19
testing requirement. Act 977 is a "Prohibition on requirement for vaccine or
immunization for coronavirus 2019 (Covid-19)." A city policy requiring weekly Covid-
19 testing to protect city employees and citizens from exposure by an infected city
employee is not a vaccine or immunization requirement.
Such a weekly testing requirement could cost the City substantial money (for the
tests) and a reduction of public services for the staff time spent to get the tests. I believe
the time needed to get such tests would have to be "on the clock" to avoid any issues
with Fair Labor Standards or even Act 977 if vaccinated employees who voluntarily
choose to show Human Resources proof of full vaccination are exempted.
Another legal concern is Act 1030 which enacts a new A.C.A. §20-7-142
Prohibition on vaccine passports into the Arkansas Code.
"20-7-142. Prohibition on vaccine passports.
(a) As used in this section, "vaccine passport" means documentation that an
individual has been vaccinated against coronavirus 2019 (COVID-19).
(b) The state, a stage agency or entity, a political subdivision of the state, or a
state or local official shall not require an individual to use a vaccine
passport in this state for any purpose.
(c) The use of a vaccine passport shall not be a condition for entry, travel,
education, or services." (emphasis added).
Our City Policy, if established by Mayor Jordan, should be absolutely clear that no
employee is required to furnish their vaccination card or any evidence of vaccination to
the City. However, an employee may voluntarily show such proof of vaccination if
they wish to be exempted from the weekly Covid-19 test just as most employees did to
receive their $50.00 incentive payments. If an employee is fully vaccinated but does not
wish to show proof of vaccination, that employee is not required to show proof of
vaccination, but like every other employee would need to be tested weekly for Covid-
19. Because showing a vaccination card must be a totally voluntary act, it is neither
required nor "a condition for entry, travel, education, or services." (Act 1030) I believe
that state law will also not be violated by a properly drafted City Policy for weekly
Covid-19 tests.
It is within the City Council's policy powers to recommend such City Policy to
the Mayor. The Mayor has the final discretion to determine whether or not he believes
that it would be in the best interests of our employees and citizens to institute such
weekly Covid-19 testing to better protect our employees and citizens. The likely costs in
staff time lost to undergo a test, additional burdens on Human Resources, any costs to
test asymptomatic employees, and any employee issues for required testing could be
considered by the Mayor along with the potential safety benefits.
This may be a difficult policy decision for the City Council and possibly also for
the Mayor. I am empowered only to examine the legality of such policy question. My
opinion is that such a mandatory weekly test for Covid-19 can be legally required of all
city employees including me, especially during this period of high transmission rates,
hospitalizations and deaths from Covid-19 in Fayetteville and Washington County.
I do need to correct or clarify the third Whereas clause I wrote for Council
Member Petty's Resolution. I am not sure that "a weekly rapid PCR or Antigen Covid-
19 virus test can be obtained free of charge for an insured city employee..." I have had
two free tests myself, but I had a sore throat or other possible symptom. It may be that
the City will need to pay for such a test where the employee is symptom free and
without known contact of an infected person. Similarly, an uninsured city employee
(we have a few) would also need such test to be paid for by the City. We must ensure
that no cost is imposed upon our employees to comply with any City required Covid-19
test.
Attached is a slightly amended Resolution for improved compliance with state
law.
2
RESOLUTION NO.
A RESOLUTION TO REQUEST THAT MAYOR JORDAN REQUIRE ALL CITY
EMPLOYEES TO SUBMIT WEEKLY RAPID PCR OR ANTIGEN COVID-19 VIRUS TESTS
TO HUMAN RESOURCES UNLESS THEY HAVE SUBMITTED PROOF OF COMPLETE
VACCINATION
WHEREAS, the City Board of Health is very concerned about the highly contagious and rapidly
spreading Delta Variant of Covid-19 virus within the unvaccinated population; and
WHEREAS, city staff should be protected as much as possible from being infected with this
dangerous Delta Variant from any other city employee; and
WHEREAS, a weekly rapid PCR or Antigen Covid-19 virus test can be supplied by the City
free of charge for a city employee from pharmacies and clinics and the employee can provide the
results to Human Resources to help ensure an infected city employee properly quarantines rather
than exposing other city employees and citizens to this deadly virus; and
WHEREAS, fully vaccinated city staff pose less of a threat of becoming infected or infecting
others with the Delta Variant of Covid-19 and so may be exempted from the weekly testing
requirement unless they are experiencing Covid-19 symptoms by voluntarily providing proof of
vaccination to Human Resources.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby requests that,
during this period of high transmission rates, hospitalizations and deaths, Mayor Jordan establish
a City policy for all employees that would require submission of a weekly testing report of a
rapid PCR or Antigen test for Covid-19 virus to the Human Resources Department for all
employees, but exempt employees who voluntarily present their valid vaccination cards showing
they are fully vaccinated (including any required booster vaccinations) to Human Resources.
PASSED and APPROVED this 71" day of September, 2021.
APPROVED:
LIONELD JORDAN, Mayor
ATTEST:
LN
KARA PAXTON, City Clerk/Treasurer
Received 08/31/21 2:44 PM
Submit Public Comment
This page is provided for efficient submission of public comment for City Council and Planning
Commission meetings. All submissions must be directly related to a specific agenda item for the
next meeting.
Please ensure your comments conform to the Rules of Order and Procedure.
RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY COUNCIL
Full Name*
Address or Ward*
Nicholas Brooks
Address
Ward
Locate Your Ward Number
Address* W short ST
Ex. 113 W Mountain St
Phone Number 4798413601
Email nicholasbrooks025@gmail.com
Meeting Body* City Council
Agenda Item 2021-0683
Number/Subject Please click the link below to navigate to the Agenda Page
Locate City Council Agenda Item
Locate Planning Commission Agenda Item
Position Opposed
Comments Please watch the attached link in reference to this proposal. we are not the first city
to have the idea of forcing vaccinations. Why are we proposing to force them, to
stop the spread of the virus? The vaccine is not successful at doing so.
This proposal is a very big deal and should not be shoved into the agenda last
minute. the city would risk losing many great employees over this decision and it
should not be taken lightly. everyone should be well educated on the issue and not
blindsided when time to vote. Thank you for your time.
https://www.youtube.com/watch?v=8DOOZpGA_V I
Attachments PDF preferred
Section from the RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY
COUNCIL Adopted 01/07/2020 by Resolution #01-20 & Amended 06/16/2020 by
Resolution #170-20:
Public Comments. Public comment at a City Council meeting shall be allowed for all members of the audience
who have signed up prior to the beginning of the agenda item they wish to address being opened for public
comment. Speakers shall be limited to a maximum of five (5) minutes to be broken into segments of three and two
minutes. Amendments may receive public comments only if approved by the City Council by unanimous consent or
majority vote. If public comment is allowed for an amendment, speakers will only be allowed to speak for three (3)
minutes. The City Council may allow both a speaker additional time and an unsigned -up person to speak by
unanimous consent or majority vote
Courtesy and Respect. All members of the public, all city staff and elected officials shall accord the utmost courtesy and
respect to each other at all times. All shall refrain from rude or derogatory remarks, reflections as to integrity, abusive
comments and statements about motives or personalities. Any member of the public who violates these standards shall
be ruled out of order by the Mayor, must immediately cease speaking and shall leave the podium.
Enter the text you want this field to display
Received 08/31/21 2:55 PM
Submit Public Comment
This page is provided for efficient submission of public comment for City Council and Planning
Commission meetings. All submissions must be directly related to a specific agenda item for the
next meeting.
Please ensure your comments conform to the Rules of Order and Procedure.
RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY COUNCIL
Full Name*
Address or Ward*
Nicholas Brooks
Locate Your Ward Number
Address
Ward
Address* W short ST
Ex. 113 W Mountain St
Phone Number 4798413601
Email nicholasbrooks025@gmail.com
Meeting Body* City Council
Agenda Item 2021-0683
Number/Subject Please click the link below to navigate to the Agenda Page
Locate City Council Agenda Item
Locate Planning Commission Agenda Item
Position Opposed
Comments Please watch the attached link in reference to this proposal. Why would we mandate
testing for non vaccinated individuals when vaccinated individuals are just as likely
to carry, spread, and contract the virus. The vaccination does not prevent this.
Thank you for your time.
https://www.youtube.com/watch?v=8DOOZpGA_VI
There are many people here at the water and sewer division against the mandatory
testing regardless of status.
Attachments PDF preferred
Section from the RULES OF ORDER AND PROCEDURE OF THE FAYETTEVILLE CITY
COUNCIL Adopted 01/07/2020 by Resolution #01-20 & Amended 06/16/2020 by
Resolution #170-20:
Public Comments. Public comment at a City Council meeting shall be allowed for all members of the audience
who have signed up prior to the beginning of the agenda item they wish to address being opened for public
comment. Speakers shall be limited to a maximum of five (5) minutes to be broken into segments of three and two
minutes. Amendments may receive public comments only if approved by the City Council by unanimous consent or
majority vote. If public comment is allowed for an amendment, speakers will only be allowed to speak for three (3)
minutes. The City Council may allow both a speaker additional time and an unsigned -up person to speak by
unanimous consent or majority vote
Courtesy and Respect. All members of the public, all city staff and elected officials shall accord the utmost courtesy and
respect to each other at all times. All shall refrain from rude or derogatory remarks, reflections as to integrity, abusive
comments and statements about motives or personalities. Any member of the public who violates these standards shall
be ruled out of order by the Mayor, must immediately cease speaking and shall leave the podium.
Enter the text you want this field to display
Agenda Session Walk -On 08/31/21
FOR: Council
Legistar ID No.: 1_— 3
AGENDA REQUEST FORM
of September 7, 2021
FROM: Council Member Matthew Petty
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A RESOLUTION TO REQUEST THAT MAYOR JORDAN REQUIRE ALL CITY
EMPLOYEES TO SUBMIT WEEKLY RAPID PCR OR ANTIGEN COVID-I9 VIRUS TESTS
TO HUMAN RESOURCES UNLESS THEY HAVE SUBMITTED PROOF OF COMPLETE
VACCINATION
APPROVED FOR AGENDA:
Council Member Matthew Petty
1
City Attorney K Williams
Approved as to form
1L'ar� sl z,,'(
Da to
Date
Kit
From:
Sent: Petty, Matthew
Friday, August 20, 2021 11:57 AM
To: Sharkey, Marti
Cc:
Subject: Petty, Matthew; Williams, Kit; Hardin, Brad
Re: Please draft legislation to require PCR testing of all employees
Kit, let's draft this as "PCR or antigen" on Dr. Sharkey's counsel.
On Aug 20, 202111:38 AM, "Sharkey, Marti" <msharkey@fayetteville-ar.gov> wrote:
If you are wanting to screen for Covid, at this point in time it is better to use the antigen test for screening of
asymptomatic individuals instead of PCR tests. PCR tests can take several days to get results, and if one has a
positive result, then you have let that person continue to interact with others when they should have been in
self -isolation. If someone is symptomatic, then a negative antigen test needs to be followed up by a PCR. In
addition, the antigen tests are cheaper and easier to administer. Where were you considering sending the
employees to be tested?
Marti Sharkey, MD, FAAP
City Health Officer
Fayetteville, Arkansas
msharkey@fayetteville-ar. gov
www.fayetteville-ar.gov
From: Sharkey, Marti <msharkey@fayetteville-ar.gov>
Sent: Friday, August 20, 202111:02 AM
To: dr.martisharkey@gmail.com <dr.martisharkey@gmail.com>
subject: FW: Please draft legislation to require PCR testing of all employees
From: Petty, Matthew<matthew.petty@fayettevine-ar.gov>
Sent: Friday, August 20, 2021 11:02:12 AM (UTC-06:00) Central Time (US & Canada)
To: Williams, Kit <kwllliams@fayetteville-ar.gov>
Cc: Hardin, Brad <bhardin@fayetteville-ar.gov>; Sharkey, Marti <msharkey@fayetteville-ar.gov>
Subject: Please draft legislation to require PCR testing of all employees
Kit, I've got another thing for the city to lead by example. Would you please draft legislation for the next
regular agenda? The legislation is to:
• require all city employees to submit weekly PCR test results for COVID-19
• waive the testing requirement for any employee who submits proof of vaccination
• reaffirm the confidentiality of personnel records, including immunization records
Thank you,
Matthew
RESOLUTION NO.
A RESOLUTION TO REQUEST THAT MAYOR JORDAN REQUIRE ALL CITY
EMPLOYEES TO SUBMIT WEEKLY RAPID PCR OR ANTIGEN COVID-19 VIRUS TESTS
TO HUMAN RESOURCES UNLESS THEY HAVE SUBMITTED PROOF OF COMPLETE
VACCINATION
WHEREAS, the City Board of Health is very concerned about the highly contagious and rapidly
spreading Delta Variant of Covid-19 virus within the unvaccinated population; and
WHEREAS, city staff should be protected as much as possible from being infected with this
dangerous Delta Variant from any other city employee; and
WHEREAS, a weekly rapid PCR or Antigen Covid-19 virus test can be obtained free of charge
for an insured city employee from Walgreens and other pharmacies and clinics and the employee
can provide the results to Human Resources to help ensure an infected city employee properly
quarantines rather than exposing other city employees and citizens to this deadly virus; and
WHEREAS, fully vaccinated city staff pose much less of a threat of becoming infected or
infecting others with the Delta Variant of Covid-19 and so should be exempted from the weekly
testing requirement unless they are experiencing Covid-19 symptoms.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby requests that,
during this period of high transmission rates, hospitalizations and deaths, Mayor Jordan establish
a City policy for all employees that would require submission of a weekly testing report of a
rapid PCR or Antigen test for Covid-19 virus to the Human Resources Department for all
employees who do not present their valid vaccination cards showing they are fully vaccinated
(including any required booster vaccinations) to Human Resources.
PASSED and APPROVED this 7s day of September, 2021.
APPROVED:
By:
LIONELD JORDAN, Mayor
ATTEST:
By:
KARA PAXTON, City Clerk/Tmasurer
Williams, Kit
From:
Williams, Kit
Sent:
Tuesday, August 31, 2021 9:35 AM
To:
Petty, Matthew
Subject:
RE: weekly covid tests for employees
Matthew,
The Mayor is primarily responsible for the city employees. The City Council controls and uses its budgetary
authority for all employee positions, necessary equipment and even benefits. However the employees'job
performance, duties and requirements would be an administrative duty rather than a legislative duty. Our Mayors
through the years have issued and revised many city policies affecting employee duties and responsibilities. This would
be another of those city policies. The Mayor is responsible for the hiring and firing of all non -uniformed
employees. Therefore, I believe it is more legally proper for the Council to recommend or request that the Mayor make
such employee policy rather than trying to do so itself and encroaching inadvertently upon an administrative function.
Kit
From: Petty, Matthew
Sent: Tuesday, August 31, 20219:17 AM
To: Williams, Kit <kwilliams@fayetteville-ar.gov>
Cc: Petty, Matthew <matthew.petty@fayetteville-ar.gov>
Subject: Re: weekly covid tests for employees
I think this works.
Can I check out one thing? Why a request instead of a law? (Not that I doubt the Mayor.)
Otherwise, would you please consider this approved by me for the agenda?
On Aug 27, 20214:56 PM, "Williams, Kit" <kwilliams@favetteville-ar.gov> wrote:
Matthew,
Please review the draft Resolution and let me know what changes need to be made.
Kit