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City prosecutor threatens to sue city over vaccine, testing requirement

Suffolk Senior Assistant Commonwealth’s Attorney Brandon Wrobleski has threatened to sue the city over its directive to require its employees to be vaccinated against COVID-19 or submit to testing for the virus.

Wrobleski sent a letter to City Manager Al Moor, City Attorney William Hutchings, Human Resources Director Robin Wynn, Mayor Mike Duman and members of City Council calling for the city to withdraw its plan, which is set to begin Oct. 1. He also posted a copy of the letter on Twitter and Facebook.

“You are instructed to withdraw this discriminatory COVID-19 testing policy immediately,” Wrobleski’s letter states. “You are further notified of my intent to sue the city of Suffolk for injunctive relief and punitive damages if you do not cease the implementation of this policy.”

That statement comes at the end of his letter, in which he states that “in accordance with the City’s HIPAA (Health Insurance Portability and Accountability Act of 1996) policy #4.1, dated 2/25/2019, I forbid the City, or any member of city government, from discussing my protected health information with any other person or entity, including, but not limited to, the City Attorney, the Human Resources Director, or any member of my office.”

City managers from Suffolk, Norfolk, Portsmouth, Hampton, Newport News and Williamsburg issued a joint press release Aug. 12. In it, they said they would require their employees to be tested for COVID-19 weekly unless they are fully vaccinated. They cited rising case counts across the region and country with the more transmissible and infectious Delta variant.

“We are at a critical point in the fight against the coronavirus,” the city managers said. “The Delta variant is causing the number of COVID cases in the Hampton Roads region and the nation to spike. As a community, we have the obligation to take additional steps to curtail the spread and, most importantly, save lives.”

City employees will have the choice to show proof of vaccination by showing their COVID-19 vaccination record card, provide a pharmacy or doctor’s office record of vaccination or by providing a copy of their immunization record. Otherwise, they will have to submit a COVID-19 test result to Human Resources “on a prescribed basis.”

Wynn said during council’s Aug. 18 work session, at a minimum, unvaccinated employees or those who don’t provide proof of vaccination will have to be tested at least twice per month. She noted that being vaccinated is not mandatory or a condition of employment. She said any associated program costs for testing and vaccinations would be covered by the city through the employee’s health insurance. The city began data collection Aug. 25 via email, and said Moor and Hutchings “viewed and approved” the city’s COVID-19 mitigation policy that takes effect Oct. 1.

Currently, unvaccinated or partially vaccinated city employees are required to wear a face mask indoors during working hours except when alone in a private office.

Wrobleski, who spoke during council’s Aug. 18 public comment period, said he was not speaking for the Commonwealth’s Attorney’s office, but he wanted to caution it and the city on the vaccination or testing requirement for city employees. He said there are city employees who will quit rather than submit to the city’s COVID-19 mitigation policy.

“As of this week, it only calls for testing, but the track record suggests that the standard will soon change to require more intrusive processes,” said Wrobleski, who also questioned testing methods with regard to accuracy and safety.

He told council that COVID-19 “is here to stay as a seasonal virus, and it’s no different than the flu for people my age — I’m 30.”

Numerous health officials, including those from the Centers for Disease Control and Prevention, have said that is not true. While both are contagious respiratory illnesses, they are caused by different viruses, and COVID-19 is more easily spread than the flu and can cause more serious illnesses in some people.

In the Western Tidewater Health District, which includes Suffolk, 30.9% of all positive COVID-19 cases, 4,882 in all, have come among those ages 20-39, with 82 hospitalizations and five deaths in that age range, according to Virginia Department of Health data from Aug. 27. One of those deaths was a 32-year old man from Suffolk who died Aug. 13.

In the Eastern Region, which includes Suffolk, there have been 1,941 infections, 85 hospitalizations and 23 deaths among people who have been vaccinated from Jan. 17 and Aug. 14. In the city, 43.8% of all people — and 53.9% of adults — have been fully vaccinated, while statewide, it is 56.2% of all people who have been vaccinated, and 67.3% of adults.

The city’s 7-day positivity rate is 14.29%, according to the Centers for Disease Control and Prevention.

Among the other things in his letter, Wrobleski said he “forbid(s) the City from taking any adverse action against me based on any perception the City may have regarding my vaccination status (or) because of my choice to withhold informed consent for any test the City wishes to perform on me, or for refusing to provide informed consent to wear a City-mandated medical device.”

He cites his credentials as a “competent” prosecutor in Portsmouth’s Commonwealth’s Attorney’s Office and in Suffolk’s and that he is not aware of any claim of his job performance being deficient.

“Should the City choose to discipline or terminate me, it will be clear that such discipline unlawfully targets my personal medical decisions and has nothing to do with the way I perform my job,” Wrobleski writes.

City spokeswoman Diana Klink, in an email, acknowledged that it had received Wrobleski’s letter, and said the city attorney’s office does not comment on pending litigation issues.

“The City of Suffolk is in receipt of the letter sent by Assistant Commonwealth’s Attorney Brandon Wrobleski, an employee of the Attorney for the Commonwealth, and not a City employee,” Klink wrote. “The City’s messaging regarding implementing testing of all municipal employees effective October 1, 2021, unless they are fully vaccinated, is consistent with numerous other Hampton Roads localities, as well as many public and private businesses and healthcare providers.”

In the current city budget, the Commonwealth’s Attorney’s office is funded at $3.6 million. The state’s Compensation Board provides partial salary reimbursement for 17 of the 26 full-time positions in the Suffolk office, “with reimbursement from the state and contributions by the city of the balance annually for operations,” according to the city’s budget document.