COVID VACCINE MANDATES for customers of private businesses were short-lived. Gov. Charlie Baker’s administration, which had a strict vaccine mandate for executive branch workers, has been quietly hiring back some terminated workers. But litigation over vaccine mandates is still ongoing.
The Supreme Judicial Court on January 6 will hear oral arguments in a case about the city of Boston’s COVID-19 vaccine mandate for employees. The court will be asked to decide whether vaccine mandates must be bargained with employee unions. The case has attracted attention from local and national police and firefighters’ unions, who have been at the forefront of fighting vaccine mandates.
Boston announced a vaccine mandate in August 2021, which became effective in October, requiring city employees to be vaccinated against COVID-19 or tested weekly. That November, as fears grew about an Omicron surge, the city decided to drop the testing option and impose a full vaccination mandate. The policy was based on science at the time showing that vaccination reduced COVID-19 cases, reduced the viral load, and reduced the chance of serious illness. Requiring vaccination, the city argued, would result in fewer COVID cases among the city workforce and less chance of spread between workers and the public.
The city began bargaining the vaccine mandate with employee unions, but put it in place before negotiations had concluded. Three city unions – the Boston Police Superior Officers Federation, Boston Firefighters Union Local 718, and the Boston Police Detectives Benevolent Society – sued to overturn the mandate.
At the time the mandate was imposed, there were 442 union-represented employees who had not been vaccinated.
An Appeals Court judge in February blocked the mandate from going into effect for union workers and required the city to keep the testing option in place. Boston paused the vaccine mandate for all city employees after that ruling.
Today, city policy is that all new employees must be vaccinated, and vaccination and testing rules for longer-time employees vary by collective bargaining agreement. More than 93 percent of the city workforce is vaccinated.
Lawyers for the city appealed to the Supreme Judicial Court. City officials say they have authority at a managerial level to require employees to be vaccinated, and they were within their rights to set a deadline for vaccination before bargaining was completed due to the “exigent circumstances” created by the pandemic. They argue that the Appeals Court judge improperly minimized the benefits of COVID vaccination by ignoring evidence of its benefits brought by the city. “That evidence established that vaccination is far more effective at protecting the health of employees, their co-workers, and the members of the public with whom they must have close contact than is the weekly testing,” attorneys for the city wrote in their court brief.
The unions say city officials needed to bargain when they changed the mandate until they reached a resolution or an impasse, and they were not allowed to impose the mandate before bargaining concluded. The unions argue that the mandate would cause “irreparable harm” to employees, both those who are fired for being unvaccinated and vaccinated workers stuck working mandatory overtime due to staffing shortages.
“As shown by the city’s own behavior, vaccination of employees, while undeniably providing benefits, is neither critical nor necessary to provide municipal services, even public safety and emergency care,” the unions argue. They cite prior cases showing that even flu vaccine mandates for hospital nurses are subject to bargaining. If COVID policies are not to be bargained, the unions argue, the result could be policies being implemented without regard to their logic or efficacy – for example, an employer could unilaterally prohibit vaccination.
The unions’ brief argues that since fully vaccinated employees continue to be infected and to transmit COVID-19 – and the overwhelming majority of workplace absences are of vaccinated employees – keeping the injunction in place that freezes the mandate “will not materially alter the transmission, infection, and impacts of the coronavirus.”
The National Fraternal Order of Police, the Massachusetts Coalition of Police, and the International Association of Firefighters filed briefs in support of the Boston unions, arguing that city officials had an obligation to bargain the vaccine mandate.
“The city’s failures in this case have far-reaching implications to union members beyond this COVID-19 vaccination policy,” argued attorneys for the National Fraternal Order of Police. “It is crucial that employees trust that their employer respects their due process rights and will afford them the opportunity to bargain in good faith.”