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Boston scores a win on vaccine mandates

The Boston Globe 3/31/2023 Editorial Board
Boston Police detective Luis Anjos got the COVID-19 vaccine at Tufts Medical Center on Jan. 11, 2021. © David L. Ryan/Globe Staff Boston Police detective Luis Anjos got the COVID-19 vaccine at Tufts Medical Center on Jan. 11, 2021.

Medical masks are not as ubiquitous as they once were and COVID-19 vaccination mandates have largely fallen by the wayside — for the moment. But that’s not to say another variant or even another unrelated pandemic isn’t just around the corner.

Preparing for the worst remains an important part of what it means to be a political leader these days. And the state’s highest court on Thursday delivered a significant victory to Boston’s leaders, assuring their ability to respond to the next health crisis with a vaccination mandate — if that’s what it takes.

The win for the city came in a case brought by Boston Firefighters Local 718 union, the Boston Police Superior Officers Federation, and the Boston Police Detectives Benevolent Society in the wake of a decision by the administration of Mayor Michelle Wu and her public health commissioner, Dr. Bisola Ojikutu, to mandate that all city employees be vaccinated against COVID-19, eliminating a provision that allowed some employees to submit to weekly testing instead.

The change was announced as the omicron variant became the dominant variant, spreading more rapidly than previous variants and decimating the workforce in both the public and private sectors. What followed, however, were weeks of ugly protests, both at City Hall and at the mayor’s Roslindale home.

“Who is the government to tell me I’m not entitled to die?” then-Boston police Sergeant Shana Cottone said during one of those demonstrations. Cottone has since been removed from the force for multiple violations of department rules.

But as the high court points out, this case wasn’t about one officer’s rights or even one union’s rights. It was about the ability of the city to set policy aimed at keeping everyone healthy. At the time the suit was filed, some 450 union members remained unvaccinated.

Writing for a unanimous court, Justice Elspeth Cypher noted, “Vaccination against COVID-19 not only protected the health of city residents, but also protected the defendants’ ability to continue to maintain a sufficiently healthy workforce during the omicron surge, as would be needed to deliver emergency public safety services to the residents of the city.”

The unions had argued in their brief that their members would suffer “irreparable harm” in the event they were fired over their unwillingness to be vaccinated. An Appeals Court judge had earlier issued an injunction staying the city policy.

Cypher countered in her decision that since “officers wrongfully terminated have [the] possibility of reinstatement and can be made whole through back pay and compensation for lost income from overtime, lost benefits under collective bargaining agreement, etc.,” their firing wouldn’t meet the definition of “irreparable.” In addition, “the risk of irreparable harm” to the union members would have had to “outweigh this potential harm to the city and the public.”

It’s easier today to dismiss the very real fears that were part of most people’s worlds just a little more than a year ago. Today the city of Boston maintains a patchwork of vaccination policies for city workers, varying by collective bargaining agreement and sometimes date of hire — some of the policies dictated no doubt by scarcity of workers in critical positions.

Several weeks before the SJC decision, the city announced an agreement with Local 718 and with the Boston Police Superior Officers Federation to not enforce the mandate.

Governor Maura Healey announced at about the same time that the state’s vaccine mandate for executive branch employees would be lifted May 11, when the COVID-19 public health emergency order officially ends.

Today some 99 percent of state workers are vaccinated, according to the governor’s office, and some 94 percent of the city of Boston’s workforce have been vaccinated.

But as SJC Chief Justice Kimberly Budd put it during oral arguments on the case in January, “So this is really for next time, right? This is for the next time the city needs to implement a policy.”

Indeed it is.

In a statement issued Thursday, Wu applauded the court ruling, noting, “it makes absolutely clear that the City of Boston had and continues to have full authority to act in the interest of public health and safety, both last winter and in the future.”

Thanks to the SJC, the vaccine mandate will remain a powerful tool in the city’s legal tool belt, providing clarity in the event of another COVID surge, another variant, or some thus far unknown health emergency.

The legal principle is clear — public health and public safety must trump the ability of recalcitrant unions to stand in the way.

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