San Carlos debates and rejects targeted hazard pay ordinance

Hudson Fox, Scot Scoop Editor-in-Chief

April 14, 2021

SteFou! / A tribute to all the pharmacists / Flickr / CC BY-NC 2.0

A pharmacist assists customers during the pandemic, fulfilling an essential service that has recently received supplemental hazard pay in some cities in the Bay Area.

Encouraged by the policies being pursued in San Mateo and other Bay Area cities, San Carlos’ city council has recently grappled with implementing a hazard pay ordinance to benefit grocery and drug store workers. Such a policy aims to compensate those workers for the additional risk they have taken on during the COVID-19 pandemic.

The public debate began on March 8 at a San Carlos city council meeting in which city officials expressed the need for a cautious approach, citing the possibility of legal pushback. City Manager Jeff Maltbie alluded to potential legal issues that may arise from the ordinance, underscoring its controversial nature.

“I am aware that there are already some lawsuits or threatened lawsuits circulating this issue, so it seems to be a fairly contentious issue,” Maltbie said, referring to legal actions brought against similar policies in other California cities.

Maltbie and City Attorney Greg Rubens projected that the issue could be presented to the council in a few months, saying that a vote-ready item by May would be “ambitious” and that June or July would be a more appropriate timeline. Citing the need to speak with other local municipalities’ officials to get a better grasp as to how to implement the ordinance and to assess the potential economic and legal fallout, Maltbie and Rubens both agreed that the aggressive timeline adhered to by cities such as San Mateo and San Francisco would not be possible.

Councilmembers Express Caution

Public Domain

At mass vaccination sites near sports stadiums and other high-occupancy buildings, the push to vaccinate residents of California is growing in intensity as lawmakers seek to prioritize essential workers.

After the proposed timeline was established by the San Carlos city management, Councilmember John Dugan reflected upon the process.

Dugan said, “I’m certainly empathetic to frontline workers, and they certainly have exposed themselves to hazards in the past year, but I wish, perhaps, that the council had considered this a year ago. It just feels like we’re towards the tail end of getting folks that protection they need to be in safer positions.”

Additionally, Dugan stressed that an immediate response to the lack of vaccinated essential workers, rather than a drawn-out legislative process that could take months, would be more important in returning to a greater sense of normalcy and safety.

Dugan said, “Instead of a legislative process that will take several months at a minimum, […] and if there’s anything we can do immediately, as a city, to give these folks their vaccine, I think that could potentially be more impactful and helpful in this situation.”

The possibility of a county-wide ordinance was also brought up in the San Carlos city council discussion. Councilmember Ron Collins relayed the contents of his conversation with District Supervisor Don Horsley of San Mateo County, conveying the lack of enthusiasm at the idea of a county-wide ordinance.

In an interview with Scot Scoop, Horsley cited the fact that the county, based on their jurisdiction, could only affect two supermarkets in the unincorporated areas of San Mateo County as the main reason that the supervisors chose not to pursue the policy.

Horsley said, “[San Mateo County’s Board of Supervisors] doesn’t have that sort of authority. If the stores were shutting down, then we could step in because there would be an emergency, but right now, we can’t do anything.”

Community Members Strongly Support Hazard Pay Ordinance

Despite some uncertainty from reticent city officials and councilmembers, public comments strongly supported the initiative, as local advocates emphasized the need for action.

In her argument supporting hazard pay, Julie Lind, the executive secretary-treasurer for the San Mateo County Central Labor Council of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), argued that the dismissal of the Long Beach, Calif. lawsuit should clear the way for an emergency ordinance, dismissing the notion that there could be a feasible legal challenge to San Carlos’ possible ordinance. Additionally, Lind stressed the timeline followed by other cities and the justification for the pay, encouraging that action be taken quickly.

Lind said, “Local jurisdictions that have passed these ordinances have done so within a month, from the initial point of discussion to implementation […] and in all of the jurisdictions, the justification for these workers specifically was the grade of pay and degree of exposure.”

Richard Hedges, a retired member of the UFCW Local 5, echoed these sentiments while adding that recent strains on the availability of the vaccine may mean that essential workers are not able to be vaccinated as quickly as the council may expect. Hedges communicated that Sutter Health had restricted the second shot from a large group of people over the age of 75 years old because there was not enough availability.

Hedges said, “Being front and center doesn’t matter if there is no vaccine.”

Additionally, David Tasman, a resident of San Carlos, underscored the need to act quickly and called upon the government to stop their slow, bureaucratic procedures and act in the interest of time.

Tasman said, “I really think that this should be acted upon as soon as possible as an emergency ordinance. Hearing about the timelines talked about staff study and community input is frankly ridiculous and just dragging your feet.”

Finally, Linda Burroughs, another contributor to the public comment, focused on the essential nature of grocery and drug store workers, stressing the toll COVID-19 has taken upon this group.

Burroughs said, “A number of folks in this group are without medical benefits, quite frankly by design, as many of them are considered part-time workers. This exacerbates the situation and it would seem that urgency is the word to underscore in this situation.”

The Council Pushes The Issue Forward

After the public comment, Councilmember Adam Rak voiced his opinion, expressing his concerns while also encouraging that they discuss the topic at the next meeting.

Rak said, “The approach is kind of narrow in scope in terms of where we’re looking at applying it, as I know there are many other essential frontline workers. I think I would be open to having a discussion about it, but I would want to get some more research done.”

Dugan supported Rak, noting the focused nature of the ordinance.

Dugan said, “It’s very challenging to draw the line at this when there’s an awful lot of frontline exposure.’”

Mayor Laura Parmer-Lohan concluded the session, securing support and expressing hope for “expediency” as the ordinance was added to the agenda for the next meeting.

In a follow-up interview after the March 8 council meeting, Collins expressed concern for grocery and drug store workers, but also noted that it is difficult to determine which frontline workers are deserving of the hazard pay ordinance and expressed concern about the city getting involved in this issue.

Collins said, “I don’t think this is an issue for the local government, I believe this is between labor unions and their employers, and I believe it’s government overreach. Overall, I’m just not sure it’s the proper role of a small town with 30,000 people to be mandating employers to provide hazard pay for a very narrow scope of employees.”

When speaking to the Long Beach, Calif. lawsuit, Collins was worried that other legal challenges may arise. Not wanting to spend resources on a legal battle, Collins maintained that the city needed time to assess the situation.

Collins said, “I’m not someone who likes to rush into things […] and we always have to think of the legal ramifications. It’s not just whether you can win the lawsuit, but it’s the time and money spent defending the lawsuit that counts. It’s our job to open the public taxpayers’ money wisely, so we are going to take a long, hard look [at this issue] before we make any decisions.”

As the interview concluded, Collins mentioned the size of San Carlos, likening it to how cities of similar sizes, such as Belmont, did not pursue this issue. He also noted that most local grocery chains, such as Lucky’s Supermarket, were already offering enhanced pay.

The Council Considers and Rejects the Hazard Pay Ordinance

On March 22, the San Carlos City Council conducted a study session and discussion on a hazard pay ordinance sponsored by Parmer-Lohan at its bi-weekly virtual meeting.

Ultimately, Parmer-Lohan’s proposal was only supported by Rak, who was interested in continuing the exploration of the topic. Councilmembers Collins, Dugan, and Vice Mayor Sara McDowell all opposed pursuing the policy, effectively killing the consideration of the hazard pay issue in San Carlos.

The meeting began with a series of questions posed by the council, directed at city staff members, that were meant to clear up any uncertainties surrounding the potential ordinance. In response to a question posed by Dugan, who expressed concerns with the toll that a potential lawsuit could take on the city, Rubens responded with an estimate that a legal case, with a trial, could take a year or more to sort out.

Rubens estimated the cost to the city would primarily fall upon the city’s coffers, stressing that it was questionable as to whether the city would have coverage by its insurance. With insurance, Rubens estimated the costs would total about $100,000, while a non-insured trial would total upwards of $250,000.

During the meeting, Dugan questioned the “scope of the ordinance,” expressing worries that the ordinance would be too “narrow.”

Assistant City Manager Tara Peterson and Rubens agreed that the issue came from a movement led by either labor unions or workers themselves.

COVID-19 Study Published in the BMJ by Hudson Fox

“[The hazard pay ordinance movement's] genesis is definitely from the grocery store workers and the related organizations,” Rubens said.

Before the council’s discussion, public comments were provided by Hedges, who returned to highlight a federal judge’s decision that dismissed a lawsuit seeking to halt a hazard pay ordinance in Seattle. Lind also commented again and called upon the council to “mirror the actions of four local cities” and take up the ordinance.

As the public comment ended, the council transitioned to a discussion among council members.

Beginning the discussion, Parmer-Lohan refuted the notion that a hazard pay ordinance was government overreach, maintaining that it was within the city’s jurisdiction to implement this sort of ordinance. In her argument, Parmer-Lohan noted that 1 in 5 grocery store workers have contracted COVID-19, as supported by a study published in the British Medical Journal (BMJ), a weekly peer-reviewed medical trade journal published by the trade union the British Medical Association (BMA), that focused on American grocery store employees.

“Under normal circumstances, I would not support inserting government into the relationship between employers and their employees,” Parmer-Lohan said. “However, we all know these are not normal times.”

Parmer-Lohan continued, highlighting that grocery and drug store workers are usually near the lower end of the pay scale and had received hazard pay, only to have those policies discontinued after a few months in most cases. Parmer-Lohan expressed concern about the availability of the vaccine.

“I echo the sentiments of these essential workers on who we have depended during the pandemic,” Parmer-Lohan said. “[Factors such as low pay, a high rate of exposure, and the uncertainty surrounding the vaccine] moved me to invite the question as to what we can do to support those who have served our community so heroically.”

As the meeting progressed, opponents of the ordinance expressed concerns that it was unnecessary. Furthermore, according to Peterson, Trader Joe’s, CVS, Lucky, Walgreens, and Dollar Tree, which would be affected by the ordinance, are all either offering increased pay during the pandemic or have offered a pay bonus.

In explaining their reasoning for withholding their support, the three councilmembers touched on a few concerns and reservations they still held.

Vice Mayor Sara McDowell maintained that she could not support the ordinance after considering the impact a potential lawsuit may have on the city’s fragile budget. Acknowledging that Daly City had recently been sued, McDowell said that a lawsuit would cripple the budget and pointed out that the California Grocers Association (CGA) has promised to pursue a legal battle with any municipality that goes forward with the implementation of a hazard pay ordinance.

“The threat of substantial legal fees to defend ourselves in federal court […] gives me pause,” McDowell said. “We are a very small city and last year we had to make some really tough budget cuts, including laying off some employees. I don’t want to be faced with that again.”

Also siding against the ordinance, Collins indicated that he was wary of legal issues that may arise as a result of the implementation of the ordinance. Mirroring McDowell, Collins’ main concern came from the cost, rather than the viability of the ordinance.

“Even if we win, I don’t want to spend the money fighting a lawsuit that we shouldn’t have to fight in the first place […] These things just tend to take on a life of their own,” Collins said.

Collins also publicly reiterated his view that a city the size of San Carlos should not involve itself in labor disputes. As an alternative, he shared his support for a resolution that would encourage local grocery and drug stores to provide hazard pay for their workers.

“I really think the stores ought to step up and provide the protection, because the workers deserve it, and I have a problem with us mandating it,” Collins said.

Reflecting earlier comments made in an interview with Scot Scoop, Collins worried about government involvement in private companies and labor disputes.

Summarizing his points and proposing that no action be taken, Collins said, “Why should we have to tell the owners of the stores that they need to do this? […] I think it’s a terrible idea to go down the road of telling these stores that they need to pay their workers money that they should already be paying, even if it’s for a short period of time. To me, it just doesn’t make any sense.”

Rak responded to Collins, musing upon the question as to what a government should do if the companies refuse to implement hazard pay policies on their own. Ultimately, Rak expressed his support for a temporary ordinance, acknowledging while the scope of the ordinance may be narrow, it would still provide support for a set of workers that have been on the frontline since the beginning of the pandemic.

“If [private companies] are not [providing hazard pay], then maybe they need to be pushed to do it; to do the right thing. I’m certainly open to supporting an ordinance around [hazard pay] that is tailored, very narrow, and has a time limit on it,” Rak said.

The third opponent of the ordinance, Dugan questioned the equity of the measure and its exclusion of other essential workers. Voicing concerns for forcing private companies to spend on the hazard pay, he noted that “significant funds” may be coming to San Carlos in the near future, and he encouraged the use of the federal dollars, via the American Rescue Plan Act (ARP) funding, to support frontline workers.

“I do draw a distinction between us as a community helping people and us as a city council mandating five or six employers in town to do something that we are not willing to put public dollars behind,” Dugan said.

McDowell provided further support, mentioning that California Gov. Gavin Newson recently signed into law SB-95, expanding COVID-19-related supplemental paid sick leave in California.

This bill provides COVID-19-related supplemental sick leave to employees who are unable to work due to COVID-19, applying to employers with more than 25 employees. Taking effect on March 29, the law applies retroactively to Jan. 1, 2021, and lasts until Sept. 30, 2021.

The culmination of these factors meant that, despite support from the mayor, the opposition prevailed. Summing up her points, Parmer-Lohan expressed disappointment that the council would not move forward with the issue.

“The bottom line is there’s never a wrong time to do the right thing,” Parmer-Lohan said.

Expressing reservations held by the three opponents of the ordinance, Dugan said, “I don’t find what’s before us tonight to be equitable. I think we are singling out a very small handful of employers […] and I am troubled by the narrowness of [the hazard pay ordinance].”

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