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Unions celebrate court ruling blocking COVID-19 vaccine mandate, but Mayor Michelle Wu likely to appeal

Boston Fire Fighters and IAFF General President Edward A.Kelly (center) at a Boston Fire Fighters press conference at Florian Hall on Wednesday. A Massachusetts Appeals Court judge has blocked Boston's vaccine mandate for city employees for now in response to a lawsuit brought by unions representing first responders.Jonathan Wiggs/Globe Staff

The controversy surrounding Mayor Michelle Wu’s COVID-19 vaccination mandate for the city workforce continues to consume her early tenure as Wu on Wednesday indicated the city will likely press on in its attempts to enforce the requirement, despite a recent court setback that municipal unions celebrated as a win in their fight with the administration.

A trio of Boston public safety unions took a victory lap Wednesday morning, a day after an appeals court judge sided with them in their battle with Wu over the mandate. Wu criticized the ruling, saying it goes against prior legal precedent.

Multiple questions about the future of the mandate remain, but, for the time being at least, unvaccinated members of the three labor groups will not face the threat of termination thanks to Tuesday’s appeals court ruling.

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“This was about people’s rights and the facts were on our side,” said Edward Kelly, a Boston firefighter and general president of the International Association of Fire Fighters, during a news conference at Dorchester’s Florian Hall.

John Soares, president of Boston Firefighters Union Local 718, called it a “great day for labor.”

Donald Caisey, president of the Boston Police Detectives Benevolent Society, said the unions are ready to sit down and negotiate with the Wu administration regarding pandemic-related requirements of the city’s workforce.

“We’re ready to go,” he said.

On Tuesday, Justice Sabita Singh granted an injunction blocking Wu’s administration from enforcing the tougher COVID-19 vaccination requirement, which Wu announced in December. The ruling effectively bars the Wu administration from taking disciplinary action against the small percentage of city employees in three unions who are not yet vaccinated until the collective bargaining process has played out.

On Wednesday, Wu said in an interview on GBH’s “Boston Public Radio” that the city would likely appeal the ruling.

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”This decision really goes against so much of what we’ve seen in court precedent,” Wu said. “City governments, state and local governments, have the authority to be able to require vaccination in the midst of public health emergency. I’m disappointed with where we are now in this.”

The decision handed down Tuesday represented a blow to Wu’s pandemic response, which has the backing of public health experts. On Wednesday, the mayor acknowledged that a memorandum of agreement reached between her predecessor, Acting Mayor Kim Janey, and some unions last year has legally complicated her attempts to have a fully vaccinated city workforce.

Indeed, that agreement, which allowed workers to submit to regular testing in lieu of vaccination, is the key difference between their fight with Wu and a recent vaccine mandate spat between Governor Charlie Baker and state troopers, according to union officials.

State labor authorities recently ruled in favor of Baker, allowing him to mandate COVID-19 vaccinations for the troopers without going to the bargaining table first, and to fire those who don’t comply. Like Wu’s mandate, Baker’s vaccine requirement does not allow testing instead of inoculation. But unlike the city of Boston, the Baker administration never struck an agreement with the unions to allow for a testing option.

While the unions have painted her administration as attacking labor rights with her vaccination requirement, Wu insisted Wednesday she remains pro-labor and argued that “so much of what has happened over this vaccination mandate has not been about collective bargaining.”

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“This is about a public health emergency, and what the city has the authority to protect our workforce and our residents with,” said Wu. At another point in the interview, she described those resisting the mandate “as a small group wanting to preserve the right for some people to be unvaccinated and to have an absolute right to work,” even if it might put the health of their colleagues’ and others at risk.

Just weeks into her new term, Wu announced in December that she was requiring the city’s 19,000-plus workers be vaccinated against COVID-19 to help curb the spread of the virus and protect the public. In her announcement, she said she wanted to do away with a weekly COVID testing option originally put in place by Janey.

Now, Wu says, “we are tangled up in what has devolved into a really unfortunate conversation.”

The unions, meanwhile, have accused Wu of ignoring collective bargaining agreements that Janey reached with labor groups last year. The unions say it is wrong for the mayor to make vaccination a condition of employment with the city.

Singh’s order applies to only the trio of unions who brought the litigation against the city — Boston Firefighters Union Local 718, Boston Police Superior Officers Federation, and Boston Police Detectives Benevolent Society — and not to other municipal unions. Those three unions have an open case currently under consideration by the state’s Department of Labor Relations regarding the city’s vaccination mandate.

Boston would not be alone in enforcing a vaccination mandate for its employees.

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Earlier this week, Politico reported that New York City fired more than 1,400 municipal workers after they refused to get fully vaccinated for COVID or submit proof of their shots. The New York City requirement does not allow for testing in lieu of jabs. Last week, The New York Times reported the US Supreme Court rejected an emergency request that it consider an appeal by a group of New York City teachers seeking to block a vaccine mandate.

Some legal experts were surprised by Singh’s ruling.

Lawrence Gostin, a law professor at Georgetown University, said there is a “huge amount” of legal precedent that stretches back more than a century. That history shows that a city has “very broad public health powers.” Collective bargaining agreements, he said, should not undermine evidence-based health and safety standards.

“It’s a bad decision,” he said of this week’s ruling. “A really bad decision.”

In her ruling, Singh appeared skeptical of the city’s argument that testing is insufficient to prevent the spread of the virus, noting that even vaccinated individuals are able to transmit the virus. She noted that “it appears that neither vaccination nor regular testing is a fail-safe method to prevent transmission.”

But, in interviews, local public health experts backed Wu’s central argument that vaccines are a crucial component in protecting the public and far superior than testing alone.

Vaccinated people can indeed contract and spread the virus, said Barry Bloom, professor emeritus and former dean of the Harvard T.H. Chan School of Public Health. But vaccines still serve a significant purpose beyond reducing an infected person’s risk of severe illness, hospitalization, or death.

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“The amount of virus in vaccinated individuals is remarkably less than that of unvaccinated individuals,” Bloom said. “We’re talking somewhere about two-thirds less likely to transmit infection.”

Bloom said vaccine mandates help not only vaccinated people, but vulnerable people they might interact with such as children under the age of 5, who are not yet eligible for the vaccine; immune-compromised people, who may not not develop much protection from shots; and others who, for one reason or another, have not been able to get the shots.

“There are very few things in this life that are perfect, and vaccines are not perfect,” Bloom said. “Reducing transmission, disease, hospitalization, and death is a public health good.”

“Vaccination is the most important tool we have in our toolbox for combating COVID,” said Dr. Helen Boucher, interim dean of Tufts University School of Medicine and an infectious disease physician at Tufts Medical Center. “All the additional mitigation measures that we use, like testing, mask-wearing, and physical distancing, those are extra layers of protection. But none of them are anywhere near as impactful as vaccination.”



Danny McDonald can be reached at daniel.mcdonald@globe.com. Follow him on Twitter @Danny__McDonald. Gal Tziperman Lotan can be reached at gal.lotan@globe.com or at 617-929-2043.