A Suffolk Superior Court judge on Wednesday rejected a request from three public safety unions to block enforcement of Mayor Michelle Wu’s COVID vaccine mandate, which takes effect Saturday, while stressing that first responders have made “remarkable” contributions to the public amid the pandemic.
The plaintiffs had argued that the policy couldn’t be enforced until Wu’s team bargains with unions for firefighters, police supervisors, and detectives. But Judge Jeffrey Locke said from the bench that he was siding with the city.
“I will not enjoin the enforcement of the policy as of Jan. 15,” Locke said during the remote hearing. “Because I think that the public health emergency now is of such a nature that it outweighs competing claims of harm by the plaintiffs.”
Locke made his decision after listening to arguments from city lawyers and attorneys for Boston Firefighters Local 718, Boston Police Superior Officers Federation, and the Boston Police Detectives Benevolent Society.
“The argument that the city is raising about why it would be such a problem to bargain has been raised ... and rejected by the courts,” said Patrick Bryant, a lawyer for the superior officers federation, during the hearing.
Leah Marie Barrault, a lawyer for Local 718, argued that multiple parties will suffer irreparable harm if the injunction isn’t granted: the unvaccinated employees who stand to lose their jobs, as well as the vaccinated workers who will have to pick up the slack for their terminated coworkers.
“They’re working today,” Barrault said of unvaccinated firefighters, which she said currently number 353. “As we sit here they’re on trucks going into people’s houses. The city wants to have it both ways. They want to say ‘the harm is so great by this, this unvaccinated population working, that we have to immediately implement this policy. There’s no time to talk.’ Yet they’re working today and they’re going to continue working until Friday.”
She said the city maintains a “management right” to put employees out of work if they’re not fit for duty.
“If they were really unfit for duty, if this was really a harm to the city, they wouldn’t be on trucks today,” Barrault said. “But yet they are.”
Robert Hillman, a lawyer for the city, countered that the plaintiffs’ harm argument doesn’t pass muster.
“The unions’ theory that there is harm to the unions as unions is not a theory that’s been adopted by any Massachusetts court,” Hillman said, adding that “the city has made every attempt in the time allotted to us by this process to put a record in front of you concerning the factual basis of the ... public health interest, which is compelling.”
Hillman said that in early December, city public health officials determined that a combination of an upcoming winter cold and flu season, the holidays, and the Omicron variant would present “an enormous problem. ... I don’t think I can overemphasize the health crisis.”
Locke, in issuing his ruling from the bench, spoke to that crisis while also praising first responders. He said he’ll file a written opinion elaborating on his reasoning.
He said he arrived at his decision “with the highest respect for the three plaintiff organizations who have been the lifeline of the city of Boston and of the Commonwealth throughout this pandemic, and who have not had the opportunity, like many others, to participate” in remote or flex work.
“You can’t respond to a fire remotely, or [to] a police call for assistance,” Locke said. “The work done by our officers and firefighters has been remarkable through this entire pandemic process. So the ruling is not meant to minimize the great work that they have done, their commitment to public service, but is a reflection of the intensity and severity of this coronavirus on all of us.”
In court papers, the unions contend the city negotiated the existing practice that allowed employees to provide negative COVID test results if they choose not to be vaccinated. Union members are already working excessive hours, the union said, and until a new agreement is negotiated, the Jan. 15 start date for the vaccine mandate should be stopped.
“The public interest will be served by an injunction because it serves the public policy of collective bargaining while ensuring strapped public safety agencies do not suffer further reductions in staffing and while also ensuring continuation of regular testing of sizeable components of the work force, which helps identify, track, and trace the coronavirus in the interest of public health,” the unions wrote in court papers.
But the city states in a court filing this week that existing agreements were negotiated when the infection and hospitalization rates from the Delta variant were falling. The emergence of the highly transmissible Omicron variant has created a new public health crisis that the Boston Public Health Commission identifies as an immediate threat to city workers — and the public they serve.
“It is the unrebutted and compelling position of the city, relying on the BPHC, that the vaccination of all city employees is a necessary part of a medically sound and necessary public health strategy in the city to combat the spread and severity of COVID-19,” the city wrote in court papers. “Suspending the deadline for union members to obtain full vaccination would be against the public interest.”
Wu on Dec. 20 ordered the mandatory vaccination of all city employees and set Jan. 15 as the date for workers to have received at least one of shot of a vaccine. Failure to comply can lead to firing, the administration has said.
The unions, in court papers, stress their opposition is fueled by the need to protect the rights of all of their members under the state’s collective bargaining laws. The unions emphasized they do not oppose COVID-19 vaccines, but are adamant that the administration must first negotiate, not issue unilateral orders.
“The science and sincerity of the city’s unilateral action do not mean that the issue is exempt from bargaining,” the unions wrote in court papers. ”The public interest will be served by the injunction because it will ensure strapped public safety agencies do not suffer further reductions in staffing and that regular testing of sizeable components of the work force will continue.”
The unions said vaccination rates among their members range from 77 percent to 89 percent.