Boston had right to impose vaccine mandate for city workers, state labor department finds

Vaccine mandate remains on hold pending separate litigation

Boston firefighter and IAFF General President Edward A. Kelly at a Boston Firefighters press conference pictured here.Jonathan Wiggs/Globe Staff

Boston had the right to implement its vaccine mandate for city workers, the Massachusetts Department of Labor Relations concluded this week in response to a complaint brought by the city firefighters union.

The decision marks a partial victory for the city, but does not carry immediate practical impact: Mayor Michelle Wu’s vaccine mandate for city workers remains on hold pending separate legal proceedings.

“The ongoing COVID-19 pandemic, with new variants and rising cases, coupled with the City’s interest in protecting the wellbeing of its employees and the public with whom they interact, and ensuring that there is sufficient staff to provide vital public safety services, exempts the City from having to negotiate with the Union over the decision to require vaccinations,” Gail Sorokoff, an investigator with the labor department, wrote Tuesday. “The City has established that exigent circumstances permitted it to implement the revised policy in January, 2022, even though the parties had not completed impact negotiations.”

Boston is required to bargain with the union over the impacts of such a decision, but city officials were free to implement the change before that bargaining concluded due to the extraordinary circumstances of the pandemic, Sorokoff wrote.

The firefighters union intends to appeal the decision, according to its attorney, Leah Barrault.

Wu faced sharp criticism from city unions when she announced in December that she would make COVID-19 vaccines a condition of employment for Boston’s roughly 19,000 municipal employees, revoking the option to test regularly instead of being inoculated. Her decision drew several legal challenges, as well as persistent protests across the city and even outside her home.

But months later, the mandate has yet to take effect. An ongoing lawsuit blocked the city from enforcing it against three public safety unions, and the Wu administration has said it will not yet enforce the mandate against other municipal employees either. And the administration has retreated from the mandate somewhat, inking an agreement with the Boston Teachers Union that would allow unvaccinated educators to continue working in classrooms when COVID-19 metrics are relatively low.

The vast majority of city employees have been vaccinated.

Tuesday’s decision comes in response to a complaint filed in December by Local 718, the firefighters union, which argued that Boston violated its labor agreement in imposing the new mandate. Two police unions have similar complaints pending.

Wu administration officials cheered the decision and said it will fuel their arguments in the separate lawsuit over the mandate.

“This decision affirms the central role of city governments in protecting public health and safety,” a city spokesperson said.

But Sorokoff’s decision is unlikely to be the final word on the matter, and Barrault said the firefighters union has a strong case to make on appeal. She argued that when Wu implemented the vaccine mandate, COVID-19 counts did not constitute an emergency that would give the city the right to upend the usual labor bargaining practices.

And she also pointed to another finding as a positive sign: The city did violate its labor agreement with the firefighters by taking away the resource of in-station COVID-19 testing, the labor department said. The city and the union will proceed to a hearing on that issue.

Battles over the vaccine mandate have proven a dominant challenge of Wu’s early tenure, a challenge familiar to Boston mayors, who often butt heads with public safety unions.