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A Court Weighs in on Vaccine Mandates and Impact Bargaining

Updated: Feb 25, 2022

Our last newsletter summarized a ruling by an investigator of the Department of Labor Relations regarding the need to bargain over the impact of a requirement that correctional workers be vaccinated. Superior Court Justice Jeffrey Locke has now weighed in on the requirement that Boston police and firefighters be vaccinated. In Boston Police Superior Officers Federation v. Wu, Judge Locke denied the unions’ motion for a preliminary injunction to block implementation of Mayor Wu’s Order unilaterally requiring vaccination as a condition of employment.

The unions agreed that the COVID-19 pandemic is real, that it requires an aggressive response, and that vaccines are a necessary tool to control the virus. Nonetheless, they argued that the decision to require vaccinations and the impact of the decision required impact bargaining and filed a charge of Prohibited Practice at the Department of Labor Relations.

The Court denied the requested injunctive relief for two reasons: it was not satisfied that the plaintiffs demonstrated irreparable harm or that their request promoted the public interest. The Court assumed that the City had the right to impose the vaccine mandate unilaterally. Even so, it “unequivocally” had an obligation to bargain over the impact of the mandate. The City represented that it was engaged in those negotiations.

But the Court did not deem discharge from employment to constitute irreparable harm (since a victorious employee can be reinstated and back pay can be awarded). The unions argued that the irreparable harm was to vaccinated workers, who would be required to work more hours to fill the shifts of the unvaccinated, terminated employees, potentially missing milestone family events. The Court was not persuaded. It also was not persuaded that the unions would irreparably lose leverage in negotiations, describing the unions are retaining immense negotiating power.

Finally, the Court concluded that the importance of vaccinated first responders greatly outweighed any harm to the plaintiffs if the injunction were not granted. In so concluding, it relied heavily on the affidavit of the Executive Director of the Boston Health Commission and the most recent available statistics of the impact of the pandemic in the country and the state. The requested injunction did not promote the public interest, the Court concluded, and testing was not an effective alternative to vaccination.

Challenges to vaccination and mask mandates continue to be brought. We will pay close attention to how the courts address the challenges in different contexts, such as in schools, private businesses, and town buildings.


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