In written decision, judge agrees with unions that city's unilateral imposition of vaccine mandate was unfair, but still gives city right to start it on public-health grounds
Suffolk Superior Court Judge Jeffrey Locke says he agrees with unions representing firefighters and police superior officers and detectives that in terms of collective bargaining, Mayor Wu was wrong to unilaterally impose an absolute requirement that city workers get vaccinated against Covid-19 after her predecessor had signed agreements letting workers opposed to shots undergo weekly testing.
But in a written ruling released Friday, Locke, as he did in an oral ruling on Wednesday, still rejected the unions' request that he issue a preliminary injunction blocking the mandate, originally set to go into effect tomorrow.
Locke said the union request failed to meet two key criteria for issuing an injunction: Unvaccinated union members are not facing "irreparable harm" because the unions can still appeal to the state and because the unions are continuing to negotiate with the city on the issue. The unions, he said, remain "immensely powerful" this way. Also, an injunction would not be in the public interest, because city officials proved the public interest requires them to do everything they can to fight a deadly virus.
The ruling means that while the unions can continue their court fight, any potential verdict could be months or even years away, and in the meantime, Boston can begin putting unvaccinated city workers on unpaid leave, something city officials said today they will put off "as a show of good faith" until Jan. 24.
Locke discussed the collective-bargaining issue more as a way to "assist the parties moving forward in this case," because it didn't affect his decision on the injunction request. Having said that, he questioned whether the city, in telling him it was still talking to the unions, was acting in good faith:
The defendants appear to want it both ways (unilaterally imposing a vaccine mandate and purportedly agreeing to bargain certain aspects of the policy change), but in the process, may have acted unfairly in abruptly imposing a vaccine requirement on the plaintiff unions that contradicts or breaches the carefully negotiated [agreements] and disregards the spirit of collective bargaining in good faith. Assuming, arguendo, that the City was permitted to unilaterally impose a vaccine mandate on the plaintiff union employees, it unequivocally has an obligation under [state law] to engage in collective bargaining regarding the impact of that mandate. Because the City failed to do so prior to December 20, 2021 [when Wu announced the mandate], the plaintiffs have established a likelihood of success on the merits at least as to the that cause of action.
But then he explained why that didn't matter: Preliminary injunctions need the people asking for them that they are facing "irreparable harm" and that the injunction would be in the public interest, and the union case fell apart here.
In addition to denying union members face "irreparable harm," both because they have other ways to fight the mandate and because the unions and the city are, however desultorily, still talking, Locke said the pandemic in general and the rise of the omicron variant in particular have tilted the public interest towards vaccination:
In light of the persistent and perilous public health emergency caused by COVID-19, the importance of vaccinations cannot be overstated and the harm from preventing the vaccine mandate from going into place, greatly outweighs any harm to the plaintiffs if the requested injunction does not issue. COVID-19 vaccines have prevented countless hospitalizations and deaths since they became available, and it is almost unthinkable as to what the world would look like without them.
Locke continued that Dr. Bisola Ojikutu, the executive director of the Boston Public Health Commission, made a compelling case that the rise of the even faster spreading omicron variant, makes vaccination even more important, because, despite breakthrough cases, vaccinated people are "significantly less likely to develop serious health complications from COVID-19, including hospitalization and death," and that requiring vaccination reduces the likelihood of police officers and firefighters who come into frequent close contact with the public, spreading the virus. And the earlier once-a-week testing alternative is no longer good enough, he wrote.
Consequently, based on the record before this Court, the plaintiffs' requested injunction does not promote the public interest, and balancing the harms supports allowing the City's vaccine mandate to go into effect on January 15, 2022. Vaccinations help to protect police officers and firefighters from hospitalization and death and from spreading COVID-19 to others, including members of the public they frequently interact with and their fellow police officers and firefighters. Moreover, particularly in light of the highly contagious Omicron variant, testing once every seven days would be insufficient to prevent the spread of COVID-19. As the virus continues to adapt, policies must adapt as welll. In this circumstances, requiring COVID-19 vaccinations as a condition of continued employment with the City is eminently reasonable and outweighs any reductions in staffing that may result.
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Time to get the shot. You too Carmen’s union, regardless of these posters giving you a free pass! ;)
The sounds of silence
Are coming from the MBTA on how they are going to enforce the vaccine mandate.
Sounds like a wise ruling
There's no irreparable harm in going forward with the mandate, even if the details need to be changed later. But there is irreparable harm to the *public* if the mandate is blocked.
1. Most compelling component -
"Those requiring public services....do not have an option in most instances regarding whether to seek such services and/or to interact with these City employees."
Could proponents provide an estimate of vaccination *transmission* benefit (so we could consider along with harm of compulsion?)
After all, the large vaccination *survival* benefit flows only to the employee, not to those who interact with them.
If a vaccine provides, say, 50% lower transmission overall, seems "meaningful" to me (arbitrary I know).
What if vaccine only reduces transmission by 2%? What if 0.2% but statistically significant? Just wonder if someone would name their tradeoff point at which they wouldn't impose.