The Supreme Judicial Court heard oral arguments Friday from the city of Boston and several police and firefighter unions, who alleged that Mayor Michelle Wu did not have the right to impose a citywide vaccine mandate in December 2021, in a case that could affect hundreds of city employees.
The high court justices must determine whether to overturn a lower-court injunction that froze Wu’s vaccine mandate while both parties address legal issues with the state’s labor relations agencies. It could be months before the court renders a decision.
Ultimately, the justices said Friday, an administrative law judge will be the one to decide whether the public health danger posed by the COVID-19 pandemic in late 2021 was sufficient cause for Wu to enact an emergency vaccine mandate without first going through the collective bargaining process.
During oral arguments, the justices made clear that they are “not fact-finders,” and challenged both sides to instead explain why the injunction still matters, more than a year after the emergency that produced it.
“Why not vacate the injunction?” Justice Dalila Argaez Wendlandt asked. “It seems silly at this point.”
Leah Barrault, an attorney for the Boston Firefighters Union Local 718, one of the three unions that challenged the vaccine mandate, argued that pausing the mandate remains important for protecting the roughly 450 still unvaccinated first responders from being fired until the factual issues are resolved in administrative court.
“The appellate court’s decision is basically putting the injunction in place until the resolution of the [factual] issue,” Barrault later explained in an interview. If the injunction is overturned while those issues are still being reviewed, she said, “we could end up... putting some employees at jeopardy.”
However, city attorney John Foskett countered that, because the Commonwealth Employment Relations Board has already found that the city can issue vaccine mandates during an emergency, the injunction should no longer remain in place.
The city had the “managerial power to make the decision to establish the vaccine mandate,” he argued.
The justices pushed back, saying there has been no final determination on whether the city violated collective bargaining requirements.
“Can we reverse the [previous] justice without deciding that issue?” Justice Scott L. Kafker asked.
Wu declined to comment Friday on whether she plans to terminate unvaccinated police and firefighters if the injunction is overturned, saying only that she “will wait to see the decision of the court when it comes to the ability and the authority of the city to take steps that are necessary to protect the public health” of Boston residents.
Along with the firefighters union, the Boston Police Superior Officers Federation and Boston Police Detectives Benevolent Society also oppose the vaccine mandate, and sued the city in December 2021 for violating labor agreements the unions reached with then-acting mayor Kim Janey that August. The unions also claimed in a statement that the mandate would “overburden exhausted work forces.”
A Superior Court judge sided with the Wu administration in January 2022, but the decision was reversed on appeal the next month, and the mandate stalled — although the injunction only applies to police and firefighters, not all city employees.
Union attorneys expressed frustration that the debate continues to drag on in court despite Wu’s ultimate decision not to enforce the mandate on any city employee, even those not covered by the injunction. If the mandate was a legitimate response to a public health emergency, attorneys said, the city could have imposed it on thousands of other employees without objection, rather than “abandoning” the policy altogether.
“We have to come to the court to protect this injunction for a policy that the city is openly not enforcing, so it does get frustrating,” Barrault said in an interview. “Today didn’t feel like a good use of time... [and] my future hope is that the city could work this out with the union in a more positive light.”