A judge made no decision Thursday afternoon in federal court in Worcester in the high-profile lawsuit brought by the union for Massachusetts prison guards, which is suing to postpone Governor Charlie Baker’s strict vaccine mandate that requires executive branch state workers to be fully vaccinated by Oct. 17 or risk being fired.
US District Court Judge Timothy S. Hillman said he would take the arguments under advisement after hearing from Jennifer Greaney, an attorney for the Baker administration, and from James Lamond, a lawyer for the Massachusetts Correction Officers Federated Union.
Lamond argued that the mandate deprives guards of fundamental constitutional rights and disregards the union’s collective bargaining agreement with the state.
“We believe, obviously, that an order which effectively names a new condition of employment, which names a behavior, which is per se, just cause for termination, our view is that that does bring about a substantial change in the rights and responsibilities the parties have themselves worked out over time,” said Lamond, during his opening remarks to kick off the hearing.
He continued, regarding Baker’s order, “It is as if the parties had agreed in their contract that failure to receive the vaccine shall constitute just cause for discharge. ... The order, that is, makes it per se, grounds for discharge. That’s not the bargain that the parties struck. That does adjust in a fairly fundamental way, the rights and responsibilities that they had negotiated” in the employment contract.
Greaney said courts have ruled in favor of similar vaccine mandates in past cases and that when the government is acting as an employer, it has much broader powers to impose requirements on workers than it does on the general populace.
“The idea that there’s a constitutional liberty interest type of right at interest here really is a red herring, because this is not some broader mandate that requires vaccinations,” Greaney said. “It is making the vaccination a condition of employment. If the person does not want to get vaccinated, they do not have to, but there will be employment consequences.”
Lamond said less drastic measures could be implemented by the state, besides the sweeping mandate that covers some 42,000 state workers, including correctional officers.
“The government has available more moderate courses that can be taken ... to address the very same problem,” he said, pointing to “how the Massachusetts Trial Court” has handled the matter.
Hillman, speaking from the bench, noted that courthouses and prisons are different working environments.
“I understand that point, but my problem with it is that the Trial Court isn’t in the same congregate living situation that the correctional officers are confronted with on a daily basis,” Hillman said.
The judge concluded the hearing around 4:30 p.m., telling Greaney and Lamond he would take their arguments under advisement.
The union had filed a 19-page lawsuit in federal court last month. The suit asserts that Baker’s order “arbitrarily and irrationally interferes with [the guards’] fundamental right to decline unwanted medical treatment” and erases “important terms” of its collective bargaining agreement.
Along with Baker, the lawsuit names Carol A. Mici, commissioner of the state Department of Corrections, as a defendant.
State troopers failed last month in a similar bid to postpone the vaccine requirement in state Superior Court. A judge denied their request to postpone the mandate to give the union time to bargain and “negotiate the terms and conditions of their employment.”
In the aftermath, a spokesman for the State Police union said dozens of troopers intend to resign over the mandate. So far, only one trooper has definitely said he’ll do so, according to State Police.
Baker’s mandate, issued Aug. 19, requires state workers under the governor’s control to be fully vaccinated or claim a personal, medical, or religious exemption by Oct. 17, or face discipline up to and including termination. It is considered one of the strictest vaccine mandates in the country because it doesn’t allow workers to choose regular testing in lieu of receiving a vaccine.
The correctional officers’ union has 4,000 members. The union filed the lawsuit in four of the officers’ names: Michael Mosher of Templeton, Zac Gustafson of Oxford, Denina Dunn of Woonsocket, R.I., and Angela Pucci of Abington.
“For various reasons, the individual plaintiffs wish to exercise their constitutional rights to decline this medical treatment, but they also wish to keep their employment and continue their careers,” the lawsuit said.
Baker has said, in the case of the state troopers, that he believes public officials who “deal directly with the public on a regular basis” ought to be vaccinated and the public ought to be able to trust and believe in that.
Correction officers argue in the lawsuit that inmates aren’t required to be vaccinated and that protocols — masks, social distancing, voluntary vaccination, regular testing, and enhanced cleaning and sanitizing practices — have kept the department running efficiently.
“Despite the pandemic, the state has operated its correction system without interruption and without the requirement that DOC employees receive an unwanted vaccination,” the lawsuit said.
The union requested that the state instead bargain in good faith “over the decision to require vaccinations and the impacts of such decision.”
Material from prior Globe stories was used in this report.