[00:00:01] Speaker 04:
Good morning, Your Honours.

[00:00:02] Speaker 04:
Good morning, Council.

[00:00:04] Speaker 04:
My name is Jennifer Kennedy.

[00:00:05] Speaker 04:
May it please the court.

[00:00:06] Speaker 04:
My name is Jennifer Kennedy and I represent Plaintiffs' Appellants, the firefighters of Snohomish Regional Fire and Rescue.

[00:00:14] Speaker 04:
We call it SURFER.

[00:00:16] Speaker 04:
The firefighters, four of them, are here today in the courtroom.

[00:00:21] Speaker 04:
This court should reverse the summary judgment granted to Surfer on undue hardship and should remand and render summary adjudication of the firefighters' prima facie case and the issue of undue hardship.

[00:00:34] Speaker 04:
The district court mishandled the cross motions below and failed to apply the clarified standard for undue hardship in Groff versus DeJoy, which requires a showing of actual significant cost to business operations.

[00:00:48] Speaker 04:
Your Honours, I know you have a thousand pieces of paper in this voluminous record.

[00:00:53] Speaker 04:
There is one key fact that is the linchpin here.

[00:00:57] Speaker 04:
One key fact that would lead any rational juror to find for the firefighters, and that is this.

[00:01:03] Speaker 04:
Surfer's claimed fear of the unvaccinated firefighters as an intolerable health and safety threat is completely irrational, and it is not borne out by the undisputed evidence of Surfer's actual conduct.

[00:01:18] Speaker 04:
First,

[00:01:19] Speaker 04:
At the same time, Surfer was barring its own unvaccinated firefighters and pushing them into unpaid suspension merely for being unvaccinated.

[00:01:29] Speaker 04:
Surfer was allowing unvaccinated firefighters from neighboring departments to respond to calls within Surfer's district and interact with its vaccinated crews.

[00:01:39] Speaker 01:
But Surfer wasn't the employer of those other districts, correct?

[00:01:43] Speaker 04:
That is correct, Your Honor.

[00:01:44] Speaker 04:
But they had mutual aid contracts.

[00:01:47] Speaker 04:
Surfer intentionally entered mutual aid contracts with all the surrounding departments.

[00:01:52] Speaker 04:
They're the hole in the donut.

[00:01:53] Speaker 04:
And every department around them accommodated their firefighters.

[00:01:58] Speaker 02:
So they were responding to calls constantly where they're- That tells us that Surfer behaved differently, made different decisions than the surrounding firefighters.

[00:02:07] Speaker 02:
Should Surfer, in order to have been consistent, should they have canceled those contracts?

[00:02:11] Speaker 04:
Actually, yes, Your Honour, and we'll see this in the rest of the evidence, if Surfer really wants to believe that they felt any unvaccinated firefighter was a risk to its own vaccinated firefighters, they should have amended the contracts, perhaps placed restrictions on who was allowed to respond in their district, and they didn't.

[00:02:31] Speaker 04:
They absolutely didn't.

[00:02:32] Speaker 04:
And that isn't the only unvaccinated firefighter they didn't fear because an absurdity happened.

[00:02:38] Speaker 04:
The absurdity mentioned by this court in the case of Bacon v. Woodward.

[00:02:43] Speaker 04:
The very unvaccinated firefighters that they pushed out of their jobs had to scramble for new work.

[00:02:50] Speaker 04:
and lead plaintiff David Peterson found work with a neighboring department, Getchell Fire, and wound up working as an accommodated, unvaccinated firefighter side by side with his same Surfer coworkers that Surfer was banning him from being around.

[00:03:07] Speaker 04:
This is exactly what the Bacon Court said was a complete absurdity.

[00:03:11] Speaker 04:
How does that make any sense?

[00:03:13] Speaker 04:
that you will ban a firefighter being near his coworkers when he's on your roster and on your dime.

[00:03:20] Speaker 04:
But when he's not, it doesn't matter.

[00:03:23] Speaker 04:
It's absurd and it's irrational.

[00:03:25] Speaker 04:
And it shows they didn't really fear them as a health and safety threat.

[00:03:29] Speaker 03:
Well, I want to ask a question about the record.

[00:03:32] Speaker 03:
So my understanding of the record is that the fire department puts forward an expert that gives an opinion about the efficacy of vaccinations and that

[00:03:42] Speaker 03:
Your clients have not put forward an expert.

[00:03:45] Speaker 03:
They have their own opinions about whether this is true, or whether the vaccine makes a difference or not, or whether masking is just as effective.

[00:03:53] Speaker 03:
But they don't have any sort of medical evidence on that point.

[00:03:57] Speaker 03:
Am I correct about that?

[00:03:58] Speaker 03:
You are correct.

[00:03:59] Speaker 04:
The expert is absolutely unrebutted.

[00:04:01] Speaker 04:
And Surfer makes a lot of hay with that.

[00:04:03] Speaker 04:
But it doesn't matter because the expert's opinion is not dispositive here.

[00:04:07] Speaker 04:
The men didn't ask for an accommodation from COVID.

[00:04:10] Speaker 04:
and COVID-19 and the effects of the disease, they asked for accommodation in the workplace to the vaccination requirement.

[00:04:17] Speaker 03:
Right, but the argument was, yes, this is a problem and, you know, we should be worried about spread and people getting sick, but we can solve that by masking and social distancing and testing frequently, right?

[00:04:30] Speaker ?:
Yes.

[00:04:30] Speaker 03:
But they say that based on their own opinion of what's going to work in this circumstance.

[00:04:34] Speaker 03:
And what are we supposed to make of that as the court?

[00:04:36] Speaker 04:
Well, actually, it's not based on their own opinion.

[00:04:38] Speaker 04:
It's based on the reality of what actually occurred.

[00:04:41] Speaker 04:
The firefighters did present evidence of their two years of working safely and professionally under

[00:04:47] Speaker 04:
surfer's exhaustive safety protocols.

[00:04:49] Speaker 01:
But at what point do we judge the employer's conduct?

[00:04:52] Speaker 01:
I mean, they've got to make a call at a certain point of time.

[00:04:55] Speaker 01:
You're asking us to second guess at a later point of time whether that call was initially correct.

[00:05:00] Speaker 04:
Your honor, actually Surfer is asking you to second guess and to rely on ex post facto hindsight speculation because those two years where the men, the firefighters were operating safely and professionally using not only masking, testing and social distancing under the playbook protocols, they were using crazy other decontamination, defogging, boot scrubbing, mask, microwaving protocols.

[00:05:27] Speaker 04:
They succeeded.

[00:05:28] Speaker 04:
Surfer has put itself in an extremely odd and awkward position of here having to denigrate its own sworn officers and also to criticize its own safety policies.

[00:05:40] Speaker 04:
No matter what they say about, in this case, that masking could have been faulty, testing could have been faulty, social distancing might have been hard,

[00:05:48] Speaker 04:
That wasn't the truth on the ground at the time, because the men testified that they absolutely rigorously followed those and the evidence shows no firefighter transmission, no patient provider transmission, no cost and no burden, because their protocols worked.

[00:06:08] Speaker 04:
And even their expert contradicted himself.

[00:06:11] Speaker 01:
But you keep calling them firefighters, aren't they actually paramedics?

[00:06:13] Speaker 04:
Firefighters in the state of Washington are required to also be either an EMT or a paramedic.

[00:06:19] Speaker 01:
But your clients aren't, for the most part, doing paramedic work?

[00:06:22] Speaker 04:
Oh, no, not necessarily.

[00:06:23] Speaker 04:
The work, the business operations of the fire department is fire suppression and emergency services.

[00:06:29] Speaker 04:
So, of course, they're doing all manner of firefighting activities.

[00:06:33] Speaker 04:
They are also being emergency medical services and transport.

[00:06:36] Speaker 01:
So they're having to be EMTs, though.

[00:06:38] Speaker 01:
I'm having trouble understanding what the accommodation could have possibly been that the employer should have granted these individuals.

[00:06:45] Speaker 04:
Your Honour, the accommodation had been happening for two years.

[00:06:49] Speaker 04:
They had been safely operating with the existing COVID virus, circulating globally, airborne, admitted by surfer to be transmitted by anyone talking and breathing normally.

[00:07:01] Speaker 04:
They'd been doing that for 20 months, observing these exhaustive safety protocols.

[00:07:07] Speaker 04:
Without even saying it, Surfer had already been accommodating them.

[00:07:13] Speaker 02:
During that period, how long had we had a vaccine?

[00:07:16] Speaker 04:
Excuse me?

[00:07:16] Speaker 02:
How long had there been a vaccine during that period?

[00:07:19] Speaker 04:
Beginning of pandemic, March of 2020.

[00:07:21] Speaker 04:
The early vaccine was rolled out in about December of 2020.

[00:07:25] Speaker 04:
And that is around the time when health care providers were given early access to that.

[00:07:31] Speaker 04:
And of course, some Surfer firefighters chose to go get it.

[00:07:34] Speaker 04:
Surfer did not require it.

[00:07:36] Speaker 04:
They did never add it to the playbook.

[00:07:39] Speaker 04:
They never even tracked the vaccination status of its employees.

[00:07:43] Speaker 04:
Moving into 2021, then it became available to the general public.

[00:07:48] Speaker 04:
Still, Surfer did not require it, did not add it to the playbook, did not even track it again.

[00:07:53] Speaker 04:
They didn't track vaccination status of their employees until Governor Inslee's mandate, until their own mandate in like around October of 2021.

[00:08:04] Speaker 04:
without saying they were accommodating, they were accommodating.

[00:08:08] Speaker 04:
They had proved that the men were doing a great job under those specific protocols that they themselves had developed.

[00:08:16] Speaker 04:
And John Lynch, the expert for Surfer, he corroborated this.

[00:08:22] Speaker 04:
Contemporaneous to the time we're talking about, in September of 2021, John Lynch published a study with about 12 other co-authors.

[00:08:31] Speaker 04:
It was published by the CDC.

[00:08:33] Speaker 04:
It was conducted

[00:08:34] Speaker 04:
in the pre-vaccine early pandemic days, around February 2020.

[00:08:41] Speaker 04:
And it was specifically King County EMS providers, and they were looking specifically at, is the PPE working?

[00:08:48] Speaker 04:
Are these protocols working?

[00:08:50] Speaker 04:
Is there a problem with transmission for our emergency personnel when we're just using masking, testing, PPE, et cetera?

[00:08:59] Speaker 04:
And to make it even harder, they were looking at AGPs, aerosol generating procedures, extremely intimate procedures where you are, you're going to be very near the breathing of perhaps a COVID positive patient.

[00:09:14] Speaker 04:
And the study found it's going well.

[00:09:18] Speaker 04:
You're doing great.

[00:09:19] Speaker 04:
The PPE is working even at a time when there was no vaccination.

[00:09:24] Speaker 02:
And so the conclusion that we would draw from that study is that we should continue with those protocols.

[00:09:29] Speaker 02:
Is that the conclusion?

[00:09:30] Speaker 04:
Judge Wibie, that's exactly what John Lynch said.

[00:09:32] Speaker 02:
But it doesn't mean that we can't adopt additional belt and suspenders.

[00:09:36] Speaker 04:
That is true.

[00:09:38] Speaker 04:
It absolutely doesn't say that.

[00:09:39] Speaker 04:
But the interesting thing about belt and suspenders is even John Lynch admits, they all admit, that vaccination itself

[00:09:47] Speaker 04:
works in concert with all these other protective measures.

[00:09:52] Speaker 04:
In his own report, he had a sheet called the Swiss cheese protection program where it shows each layer of protection adding another layer of possible protection with every item having holes in it.

[00:10:09] Speaker 04:
Masking isn't perfect.

[00:10:11] Speaker 04:
Testing isn't perfect.

[00:10:12] Speaker 04:
The vaccination isn't perfect.

[00:10:14] Speaker 04:
Even he admitted, this is a combination.

[00:10:17] Speaker 04:
But the thing is, their combination without vaccination was working.

[00:10:22] Speaker 04:
Vaccinated, unvaccinated firefighters were side by side, each observing these exhaustive protocols.

[00:10:29] Speaker 04:
And there's no evidence in the record, none.

[00:10:32] Speaker 04:
No cost, no burden, no hardship to Surfer in reality.

[00:10:37] Speaker 04:
What Surfer is trying to do now.

[00:10:40] Speaker 02:
And we know that that would continue to be effective when there's a spike in the

[00:10:44] Speaker 02:
in COVID because why?

[00:10:47] Speaker 04:
Well,

[00:10:48] Speaker 04:
Again, Judge, there were spikes before.

[00:10:51] Speaker 04:
Recall the early pandemic with the original Wuhan strain.

[00:10:54] Speaker 04:
It was very virulent.

[00:10:55] Speaker 04:
There was a lot of concern about waves.

[00:10:59] Speaker 04:
And what we're looking at now is the Delta and the Omicron waves.

[00:11:02] Speaker 04:
All of this goes to Dr. Lynch's assessment of risk.

[00:11:07] Speaker 04:
And risk is something these firefighters eat for breakfast.

[00:11:11] Speaker 04:
Firefighters are trained in risk.

[00:11:14] Speaker 04:
They are trained in safety management.

[00:11:16] Speaker 04:
and you come all the way back around to the fact that they had these industry-specific protocols.

[00:11:23] Speaker 04:
They anticipated the risk, mitigated it, and responded to it, to inevitable COVID infection.

[00:11:30] Speaker 04:
Within their own ranks, they had a return-to-work guideline.

[00:11:34] Speaker 04:
They had a common-sense guideline, Chief O'Brien saying, if you got sick, you stayed home.

[00:11:39] Speaker 04:
We didn't want people who were sick at the workplace.

[00:11:42] Speaker 04:
And then the return to work guidelines led them back to recover at home safely.

[00:11:48] Speaker 04:
And then you get to come back to work.

[00:11:51] Speaker 04:
There was never a question of if you get COVID, you're out.

[00:11:56] Speaker 04:
after the mandate, that is the, that was the stance they took, that it was vaccination or basically termination.

[00:12:06] Speaker 04:
Because putting a man on unpaid suspension, indefinite unpaid suspension for possibly up to three years, that's not an accommodation, that's a harm.

[00:12:16] Speaker 04:
We see the Fifth Circuit holding that to be an irreparable harm in Sombrano versus United Airlines.

[00:12:22] Speaker 04:
You cannot do that to a man and call that benevolence.

[00:12:27] Speaker 04:
You can't call it a flexible leave option.

[00:12:29] Speaker 04:
You can't even call it leave because the men didn't want this.

[00:12:33] Speaker 04:
The firefighters wanted to keep working and that was the accommodation they asked for.

[00:12:39] Speaker 04:
And in fact, that Chief O'Brien had told them he would be happy to do.

[00:12:45] Speaker 04:
Look at the timeline again.

[00:12:46] Speaker 04:
When you look at August of 2021, Governor Inslee comes out with that mandate.

[00:12:53] Speaker 04:
John Lynch is saying that from August of 2021 to April of 2022, that was the exact period that the men- To prove then undue hardship, what?

[00:13:02] Speaker 01:
We would have had to wait for actual spikes among the firefighters to be displayed.

[00:13:08] Speaker 01:
Just what point do you think undue hardship is triggered?

[00:13:11] Speaker 04:
The undue hardship, again, in this instance, under Grof, has to be significant cost to operations.

[00:13:18] Speaker 01:
Yeah, but give me an example of what would be taking place on the ground to justify a finding of undue hardship.

[00:13:24] Speaker 04:
The only thing, in my opinion, Your Honor, would be either a radical health and safety problem, and I'm just making this up because it didn't happen, massive amounts of COVID infections, massive amounts of absences.

[00:13:38] Speaker 01:
So the employer had to wait for that point to happen?

[00:13:40] Speaker 04:
No, they didn't have to wait because, again, number one, they had already been accommodating through wave after wave and variant after variant.

[00:13:50] Speaker 04:
Delta and Omicron were nothing new compared to what had already happened.

[00:13:54] Speaker 04:
They had done their own experiment, their own accommodation, without really realizing it.

[00:14:01] Speaker 04:
And they had done an excellent job.

[00:14:02] Speaker 04:
And so based on that

[00:14:04] Speaker 04:
true reality.

[00:14:06] Speaker 04:
There was no reason to expect that any new waves or new variants were going to cause something that had never happened.

[00:14:12] Speaker 04:
They had absences.

[00:14:14] Speaker 04:
They managed them.

[00:14:15] Speaker 04:
They had infections.

[00:14:17] Speaker 04:
They managed it.

[00:14:18] Speaker 03:
Do you want to save any time for rebuttal?

[00:14:20] Speaker 04:
Pardon?

[00:14:21] Speaker 03:
Do you want to save time for rebuttal?

[00:14:22] Speaker 03:
Yes, I would like to save three minutes for rebuttal.

[00:14:24] Speaker 03:
So you're down to 45 seconds.

[00:14:26] Speaker 03:
I'll give you two minutes for rebuttal.

[00:14:27] Speaker 03:
Thank you.

[00:14:28] Speaker 03:
Thank you, Your Honor.

[00:14:35] Speaker 00:
May it please the court.

[00:14:36] Speaker 00:
I'm Shannon Phillips on behalf of Snohomish Regional Fire and Rescue from the Summit Law Group, also known as SURFER.

[00:14:43] Speaker 00:
This decision was made, there was a question from the panel about what point in time we're looking at.

[00:14:49] Speaker 00:
This decision was made by SURFER after the governor in August 2021 during the Delta wave of COVID when it was estimated that one in 172 Washingtonians had an active COVID case.

[00:15:03] Speaker 00:
Hospitals were full.

[00:15:05] Speaker 00:
healthcare workers were strained.

[00:15:07] Speaker 00:
The governor made a decision that healthcare workers would be required to be vaccinated in order to quote, protect everyone, including persons who cannot be vaccinated for medical reasons, youth who are not eligible to receive a vaccine, immunocompromised individuals and vulnerable persons, including persons in healthcare facilities, long-term care facilities and other congregate care facilities from COVID-19.

[00:15:32] Speaker 00:
Surfer employed 192 healthcare providers.

[00:15:36] Speaker 00:
These are firefighter EMTs and 85% of what they do in responding to emergency calls is providing healthcare.

[00:15:46] Speaker 00:
They go into people's homes, they go into prisons, they go into long-term care facilities that were the epicenter of some of the COVID outbreaks and where the person calling 911 might be one of the most vulnerable people to COVID.

[00:16:01] Speaker 03:
I think that's a very compelling argument, but what do you do with her point about if that was such a concern, why were firefighters from other places who were not vaccinated being allowed to work alongside your people?

[00:16:13] Speaker 00:
So, appellants would like this to be like the Bacon case.

[00:16:18] Speaker 00:
And that was a case on the pleadings.

[00:16:21] Speaker 00:
And so what the court seemed to think was a possibility in Bacon was that Spokane dismissed firefighters and then hired contract workers to replace them who were unvaccinated.

[00:16:33] Speaker 00:
That's not the evidence in the record here.

[00:16:35] Speaker 00:
Again, every health care provider, like a fire agency, was required to determine, are its health care workers vaccinated?

[00:16:44] Speaker 00:
If not, can we reasonably accommodate them?

[00:16:47] Speaker 00:
Appellants say, well, there are interlocal agreements.

[00:16:50] Speaker 00:
There is not an interlocal agreement in the record.

[00:16:53] Speaker 00:
It doesn't say when that's used.

[00:16:56] Speaker 00:
So yes, you can imagine if there are surrounding areas around a fire district and maybe there's a five alarm fire and multiple units need to respond and so we call on each other.

[00:17:07] Speaker 00:
There is no evidence in the record that

[00:17:09] Speaker 00:
People from other jurisdictions were living 24-7 in a firehouse.

[00:17:14] Speaker 00:
That is part of the danger.

[00:17:15] Speaker 00:
You are sleeping, you are eating, you are using the showers.

[00:17:19] Speaker 00:
It is like your home where you cannot wear a mask all the time.

[00:17:23] Speaker 00:
So there's no evidence that people from other fire districts were coming and living in the firehouse.

[00:17:28] Speaker 00:
They are not.

[00:17:29] Speaker 03:
That goes to a concern about infection amongst the firefighters.

[00:17:32] Speaker 03:
But I understood one of your arguments to be we need to be extra careful in this circumstance because of the work that's being done here because we're engaging with

[00:17:41] Speaker 03:
vulnerable people out in the public, the people who are calling for EMS services.

[00:17:46] Speaker 03:
And that starts to fall apart a bit if people responding to that, some are vaccinated and some are not, and you guys are allowing that to happen.

[00:17:55] Speaker 03:
That seems inconsistent and as your friend across the aisle suggests, arbitrary.

[00:17:59] Speaker 00:
So again,

[00:18:00] Speaker 00:
we are looking at, could we have accommodated the firefighters without undue burden to Surfer's operations?

[00:18:06] Speaker 00:
There's no evidence in the record at the end of discovery and on summary judgment that Surfer was sending firefighters or EMS workers from any other jurisdiction to respond to medical calls.

[00:18:17] Speaker 00:
That is not in the record.

[00:18:19] Speaker 00:
But again, when Surfer is looking at, okay, what are our costs?

[00:18:23] Speaker 00:
Are our firefighters more likely to become infected, more likely to transmit COVID to someone else?

[00:18:30] Speaker 00:
Surfer relied on agencies like the CDC, the State Department of Health to say, yes, unvaccinated people at that time were more likely to contract.

[00:18:40] Speaker 00:
and transmit COVID.

[00:18:42] Speaker 00:
So if we are sending our employees out on an EMS call, they are more likely to get COVID.

[00:18:47] Speaker 00:
They're more likely to transmit it to their fellow workers as they're driving in those vehicles together.

[00:18:53] Speaker 00:
And when they go into that home, our employees are more likely to transmit COVID, even with the other precautions, to patients.

[00:19:01] Speaker 00:
It doesn't mean, you know, firefighters have to live in the world.

[00:19:04] Speaker 00:
So they are going out into prisons where they're very likely are unvaccinated people.

[00:19:09] Speaker 00:
They are going to homes where people might be unable to be vaccinated.

[00:19:13] Speaker 00:
They're not vaccinated.

[00:19:14] Speaker 00:
They probably are not wearing masks in their home.

[00:19:17] Speaker 00:
Even if a firefighter comes into the room and then says, put on a mask, they haven't been wearing it.

[00:19:22] Speaker 00:
It's an aerosolized virus.

[00:19:24] Speaker 00:
So the risk exists from COVID.

[00:19:27] Speaker 00:
Surfer's obligation was not to eliminate all risks of COVID.

[00:19:31] Speaker 00:
It was to say,

[00:19:32] Speaker 00:
Can we have unvaccinated healthcare providers performing in their healthcare roles without imposing an undue burden?

[00:19:42] Speaker 00:
And what Surfer said is, if they are unvaccinated, based on reliable evidence we have from public health authorities, they are more likely to get COVID, they're more likely to transmit COVID to others.

[00:19:55] Speaker 00:
If that happens, we could have people out of work, again,

[00:19:59] Speaker 00:
You look at the records, surfer, the plaintiff's appellants don't say people didn't get COVID.

[00:20:06] Speaker 00:
They claim unscientifically that they never had COVID and never transmitted it to anyone.

[00:20:12] Speaker 00:
But they don't actually say that people didn't get COVID.

[00:20:14] Speaker 00:
They said, oh, people got COVID, they left the workplace, they came back to the workplace.

[00:20:18] Speaker 00:
That's a disruption to Surfer's operations.

[00:20:21] Speaker 00:
If someone believes, learns that, wait a minute, there was this requirement for vaccination and yet you sent into my home an unvaccinated firefighter and the person who called for service got COVID and died, there is a possibility of a legal risk to Surfer if that person makes a claim.

[00:20:40] Speaker 00:
Surfer made the decision, we want to reduce the likelihood of that.

[00:20:44] Speaker 00:
Surfer had a $375,000 contract to provide services, EMS services, to the state prison.

[00:20:53] Speaker 00:
The prison sent a letter saying, we will not allow unvaccinated people into

[00:21:00] Speaker 03:
Our facilities because I want to ask a question on that point because I thought that that was a fairly compelling Piece of evidence that you know undue burden to the operations if the fire department is going to lose this very lucrative contract with the state Because they can't provide services under the conditions the state is requiring that seems compelling but the the record is a little bit murky on this point and fairly vague in that

[00:21:23] Speaker 03:
The prison sends out this letter saying we want everybody vaccinated, but maybe in practice they didn't actually require everybody to be vaccinated.

[00:21:31] Speaker 03:
And I also don't have any sense from the record unless I've missed it about what that actually meant for you.

[00:21:36] Speaker 03:
Like if you didn't have the vaccine mandate, you did have people that were nonetheless voluntarily vaccinated.

[00:21:43] Speaker 03:
And so couldn't you have just sent those guys to the prison when necessary?

[00:21:47] Speaker 00:
Well, they sent the letter after the requirement was put into place.

[00:21:51] Speaker 00:
So it was in fall of 2021, they sent the letter saying, there is a requirement.

[00:21:56] Speaker 00:
We are requiring that if you have a contract with us, you may only send unvaccinated firefighters.

[00:22:01] Speaker 00:
That is a burden to operations.

[00:22:02] Speaker 00:
We know that Surfer had a dozen different firehouses.

[00:22:06] Speaker 00:
It's stationed by different rotations of people.

[00:22:09] Speaker 00:
So the idea that, okay, if we receive a 911 call from the prison for emergency services, we are going to try and figure out

[00:22:17] Speaker 00:
Is the person who is on staff that day to drive a specific vehicle, well, they can't drive when that call comes in.

[00:22:24] Speaker 00:
Are we going to get somebody from a farther away station?

[00:22:27] Speaker 00:
So that is an impact on operations if it is not able to respond.

[00:22:33] Speaker 00:
Now, the appellants have also said, well, you know, there's never a letter later on saying that you could let unvaccinated people in and you brought us back in spring 2022.

[00:22:44] Speaker 00:
Surfer, the record shows, was making appropriate risk calculations throughout this.

[00:22:50] Speaker 00:
In fall of 2021, having come off the tail end of the Delta variant,

[00:22:56] Speaker 00:
They said, we think the risks are too high.

[00:22:59] Speaker 00:
I mean, you can even, again, you don't look in your workplace and say, can I see science happening here and judge based on that?

[00:23:06] Speaker 00:
But you can see in the records that Surfer had four cases of COVID.

[00:23:10] Speaker 00:
Again, could be under reported because that's people reporting that they had COVID.

[00:23:15] Speaker 00:
They have to know, they have to have symptoms, they have to get tested.

[00:23:18] Speaker 00:
It had seven in August as the Delta wave was happening.

[00:23:21] Speaker 00:
So this was happening in the world.

[00:23:23] Speaker 03:
I guess I'm not understanding what you're saying in terms of

[00:23:26] Speaker 03:
Whether there's an undue burden on the fire department depends, with relation to the Department of Corrections contract, depends on the Department of Corrections judgment, not on the fire department's judgment.

[00:23:37] Speaker 03:
So you're saying the fire department was making risk assessments over time based on the circumstances it was facing, and it changed its risk assessment.

[00:23:47] Speaker 03:
And at one point it said, everybody's got to be vaccinated.

[00:23:49] Speaker 03:
And later it said, no, things have changed.

[00:23:51] Speaker 03:
Everybody doesn't have to be vaccinated.

[00:23:54] Speaker 03:
With regard to the DOC contract though, what is DOC's position there?

[00:23:58] Speaker 03:
Did they ever let people come in that weren't vaccinated?

[00:24:03] Speaker 00:
We don't know what DOC did.

[00:24:04] Speaker 00:
What does this record tell us?

[00:24:06] Speaker 00:
The record tells us that they told us, you as a contract holder, we are paying you $375,000 a year to send people and do these services, and you will be in violation of your agreement with us if you send in unvaccinated people.

[00:24:19] Speaker 00:
So that's what they told us.

[00:24:21] Speaker 00:
Again, at a time where

[00:24:23] Speaker 00:
risks of COVID were very heightened.

[00:24:25] Speaker 00:
So Surfer looked at that and said, COVID is very prevalent right now.

[00:24:31] Speaker 00:
We think that's a legitimate risk that one of our firefighters who's unvaccinated goes into a prison.

[00:24:36] Speaker 00:
There's an outbreak.

[00:24:39] Speaker 00:
The prison says, you caused this outbreak.

[00:24:41] Speaker 00:
You violated our contract.

[00:24:43] Speaker 00:
We're no longer working with you.

[00:24:44] Speaker 00:
That was one of many of the things they considered as the cost.

[00:24:49] Speaker 00:
Again,

[00:24:50] Speaker 00:
top of the list is the risk to coworkers, patients, and the public who are being served.

[00:24:58] Speaker 00:
This is one of them.

[00:24:59] Speaker 00:
There's risks of liability as well.

[00:25:01] Speaker 00:
But they're looking at over time the

[00:25:04] Speaker 00:
The plaintiffs say, well, nothing was wrong because you brought us back in spring of 2022.

[00:25:09] Speaker 00:
Again, what the record shows is throughout this time, Surfer is balancing.

[00:25:15] Speaker 00:
As Dr. Lynch said, if Surfer wanted to be 100% safe, it would have its firefighters stay at home and never leave the house because that's the only way you're going to be safe from COVID.

[00:25:25] Speaker 00:
Well, Surfer's mission is to save lives by providing emergency medical services, by providing fire suppression.

[00:25:33] Speaker 00:
So it doesn't want to do that, but it's trying to balance the risks from COVID, the potential costs from COVID and being able to have its highly trained

[00:25:44] Speaker 00:
EMS and firefighters, workers go out and provide those services.

[00:25:48] Speaker 00:
By the time it got to April 2022, the conditions had changed.

[00:25:53] Speaker 00:
COVID conditions had changed.

[00:25:54] Speaker 00:
We were out of the Omicron wave.

[00:25:57] Speaker 00:
There were lower community incidents of COVID, lower hospitalizations.

[00:26:01] Speaker 00:
Courts have also said it's appropriate to look at the

[00:26:04] Speaker 00:
The overall burden based on the number of people requesting accommodations in fall of 2021 one quarter of surfers firefighter EMT paramedics.

[00:26:15] Speaker 00:
wanted to be exempt from the vaccination requirement.

[00:26:18] Speaker 00:
By the time it got to April, there were only 11 firefighters who were asking for an accommodation.

[00:26:24] Speaker 00:
So that is a much different risk calculus of, do we have one quarter of our firefighters who are unvaccinated?

[00:26:31] Speaker 00:
What is the risk of transmission within our community of firefighters to patients?

[00:26:37] Speaker 00:
What is the risk if at a lower time of incidents in the community, we only have 11?

[00:26:46] Speaker 00:
Your Honor, multiple courts in the healthcare context have recognized that the kind of evidence that Surfer relied on in making his decision, relying on public health authorities who have an indish of a reliability showing there is an increased risk of COVID, of

[00:27:08] Speaker 00:
of firefighters getting COVID and transmitting it to others.

[00:27:12] Speaker 00:
That alone is an undue burden on operations where the mission of the hospital, the fire department, et cetera, is to provide health care, to save lives.

[00:27:24] Speaker 00:
That is the situation here with Surfer.

[00:27:27] Speaker 00:
Its decision that it was an undue burden is reasonably based on the evidence that was available to it in fall of 2021.

[00:27:34] Speaker 00:
And then again,

[00:27:36] Speaker 00:
modified its decision in spring of 2022.

[00:27:40] Speaker 00:
For that reason, we're asking the court to uphold the decision of the trial court.

[00:27:45] Speaker 00:
Thank you.

[00:27:47] Speaker 03:
Thank you, counsel.

[00:27:48] Speaker 03:
All right, we'll put two minutes on the clock for rebuttal.

[00:27:55] Speaker 01:
I'm sorry to eat up your two minutes, but I mean, help me understand.

[00:27:58] Speaker 01:
I thought you were telling us that there was locality agreements in place, and I was assuming there was some kind of written agreements.

[00:28:04] Speaker 01:
Is that right or wrong?

[00:28:05] Speaker 04:
That is correct.

[00:28:06] Speaker 04:
They are called mutual aid contracts.

[00:28:08] Speaker 04:
They are entered into by surfer with the department.

[00:28:11] Speaker 04:
They choose to do that.

[00:28:12] Speaker 04:
That's an intentional contract.

[00:28:13] Speaker 04:
It's very common.

[00:28:14] Speaker 04:
So I'm not sure what my friend was saying about that, but the surfer is not reaching out and hiring people to come in.

[00:28:23] Speaker 04:
They respond on mutual aid to calls.

[00:28:25] Speaker 04:
There are two kinds of mutual aid.

[00:28:27] Speaker 04:
There's automatic mutual aid, where they are just sent in, and there's requested.

[00:28:32] Speaker 04:
So there's always a chance that you're going to have a separate department showing up on a response call.

[00:28:37] Speaker 04:
And this happened routinely, which just goes to show Surfer didn't care if the unvaccinated firefighters showed up.

[00:28:45] Speaker 04:
Didn't control that.

[00:28:46] Speaker 02:
It may have cared.

[00:28:47] Speaker 04:
They could have stopped, Your Honor.

[00:28:49] Speaker 04:
They could have, if they really cared.

[00:28:51] Speaker 02:
And then risked having to go and respond to something that they were unable to control by themselves.

[00:28:57] Speaker 04:
It never happened, Your Honor.

[00:28:59] Speaker 02:
But never happened is hindsight.

[00:29:01] Speaker 04:
But that's what this case is about.

[00:29:04] Speaker 04:
That's all this case is about, is Surfer is saying in hindsight, ex post facto, what might have occurred, but the reality on the ground, the evidence in the record.

[00:29:16] Speaker 02:
That's not hindsight, Counsel.

[00:29:18] Speaker 02:
I think you've misused that term.

[00:29:20] Speaker 04:
All right, Your Honor.

[00:29:21] Speaker 04:
You know what?

[00:29:21] Speaker 04:
Speaking of the record, I do.

[00:29:23] Speaker 04:
I want to tell you about the prison.

[00:29:24] Speaker 04:
What is in the record is that Lieutenant Jay Stickney got his replacement job with the Central Mason Department.

[00:29:31] Speaker 04:
They accommodated their firefighters and they serviced the prison.

[00:29:34] Speaker 04:
So, yes, the DOC did allow unvaccinated firefighters in.

[00:29:38] Speaker 04:
Your Honor's reality.

[00:29:40] Speaker 04:
What page of the record?

[00:29:41] Speaker 04:
What page of the record establishes that?

[00:29:43] Speaker 04:
I'm sorry, it's not right in front of me.

[00:29:45] Speaker 04:
But it is in the record.

[00:29:46] Speaker 04:
Absolutely.

[00:29:47] Speaker 04:
Can you point me to like a particular declaration?

[00:29:49] Speaker 04:
Yes, Lieutenant Jay Stickney, it's going to either be in his, it's either going to be in our private leave, it will be in, there are two declarations for each man.

[00:29:57] Speaker 01:
But just to be clear, what's in the record is that

[00:30:00] Speaker 01:
The corrections department knew that an unvaccinated person was being sent in and the acquiesce to that?

[00:30:06] Speaker 04:
Yes, 100%.

[00:30:07] Speaker 04:
They absolutely did.

[00:30:09] Speaker 04:
When you look, Your Honor, when you look at the letter that the Department of Corrections sent out, the one piece of evidence that they claim indicated the contract might be breached, you see that it's a form letter basically restating the proclamation and stating also

[00:30:22] Speaker 04:
please let us know if you've accommodated anyone.

[00:30:25] Speaker 04:
It contemplates accommodations.

[00:30:27] Speaker 04:
By the way, Your Honours, also, the only reason that Surfer has brought up the contract is because they claim one quarter of the workforce, that number, that 46.

[00:30:37] Speaker 04:
But look at the papers, please.

[00:30:39] Speaker 04:
Every time they say 46, it's with requested accommodation or requested exemption.

[00:30:46] Speaker 04:
There's no specifics.

[00:30:47] Speaker 04:
And Chief O'Brien himself admitted that it was 11.

[00:30:49] Speaker 03:
You're out of time.

[00:30:51] Speaker 03:
Other questions from the bench?

[00:30:53] Speaker 03:
No, thank you.

[00:30:54] Speaker 03:
All right.

[00:30:54] Speaker 03:
Thank you, counsel.

[00:30:55] Speaker 03:
Thank you, your honor.

[00:30:55] Speaker 03:
We appreciate the helpful argument, the matter of Peterson versus Nahomish regional fire.

[00:31:00] Speaker 03:
I'm not looking at it.

[00:31:03] Speaker 03:
Regional fire and rescue is submitted.

[00:31:06] Speaker 03:
And we will turn to the second case.