A Massachusetts Appeals Court justice today extended her ban on the Wu administration's efforts to make city workers get Covid-19 shots by threatening their jobs, saying the requirement would cause the workers and their unions "irreparable harm" and that the city's public-health claims are overblown since most city workers are already vaccinated.
The ruling, by Justice Sabita Singh, means that, unless it is overturned, firefighters, detectives and police superior officers who don't want to get a shot can stay on the job pending the outcome of their suit over the requirement, which could take months, if not years, to go through the court system.
Here, the harm to the city and the public interest caused by the city's inability to enforce the vaccine mandate policy as to the unions, during the pendency of litigation, is quite limited. The city would be unable to require approximately 450 employees (the remaining unvaccinated union members) to show proof of vaccination, but it would be able to require them, pursuant to the existing agreements, to test regularly to minimize the risk that employees infected with the virus would interact in the workplace and with the public. Thus, the city retains the ability to effect public health measures to minimize the spread of the virus.
In an agreement signed by the city and the Boston Teachers Union, the city agreed to a testing option for the vaccine-averse once citywide Covid-19 numbers decrease below benchmarks set by the city - but with twice weekly testing, instead of the once weekly testing agreed to last year by the then Janey administration for all city employees. And the agreement would let the city lay off workers who do not get shots during "high" Covid-19 rates of the sort the city was still reporting last week.
Singh wrote that while the city could take steps short of effectively firing employees who refuse to get shots to protect public health, the harm that would be caused to the specific employees and in more general terms to the collective bargaining rights of the unions and their members would just be too high, rejecting an argument by Suffolk Superior Court Judge Jeffrey Locke, who had ruled the city could go ahead with its mandate on public-health grounds in part because the workers could always sue later.
The unions had argued that Wu's mandate violated their collective-bargaining rights because it was a change in working conditions that was announced at a press conference rather than negotiated with the unions.
Money damages do not adequately compensate the loss of individual self-determination of employees and of the unions' inability to meaningfully protect their interests. The unions have established a substantial risk of irreparable harm.