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Top Massachusetts court backs Boston in COVID-19 vaccine mandate fight, throws out lower ruling

Boston Herald 3/30/2023 Sean Philip Cotter, Boston Herald
BOSTON, MA - February 16:    Boston Mayor Michelle Wu speaks at the Former Blessed Sacrament Church to announce affordable housing plan for Boston on February 16, 2023 in , BOSTON, MA. © Stuart Cahill/Boston Herald/TNS BOSTON, MA - February 16: Boston Mayor Michelle Wu speaks at the Former Blessed Sacrament Church to announce affordable housing plan for Boston on February 16, 2023 in , BOSTON, MA.

The state’s top court has ruled in favor of the city in the battle over its COVID-19 mandate, throwing out the preliminary injunction against the Wu administration and clearing the way for future versions of such policies.

Supreme Judicial Court Associate Justice Elspeth Cypher wrote the opinion issued Thursday, throwing out an appellate judge’s order not to enforce the vaccine-mandate police from December 2021 — a policy under which no one’s ever been disciplined.

“The defendants’ policy decision to amend the COVID-19 policy was based on concerns not only for the health of their employees, but also for the residents of the city, for whom the defendants were obligated to provide continued access to public safety services,” Cypher wrote. She added that “the potential harm to the city and the public resulting from the spread of COVID-19 clearly outweighed the economic harm to the employees.”

This fight stems from the start of the omicron-variant surge in December 2021, when new Mayor Michelle Wu announced that every city employee would have to get the COVID-19 jab by mid-January or face suspension and possible termination.

Three unions — the International Association of Fire Fighters Local 718, Boston Police Superior Officers Federation and Boston Police Detectives Benevolent Society — sued, claiming Wu had violated their labor rights by unilaterally overriding previous policy.

A superior court judge quickly sided with the city, saying that though he continued to have questions about how the city had handled bargaining, he wasn’t going to tie the administration’s hands in an emergency. The unions appealed, and the city delayed implementation — ultimately forever, after Associate Justice Sabita Singh of the appellate court overrode the lower judge, deeming that the city had violated labor rights.

Singh put the injunction into place, and that’s remained in effect until now, when the SJC reversed it.

“Contrary to the decision of the single justice, the defendants need not have bargained over the decision to amend the COVID-19 policy to remove COVID-19 testing as an alternative to vaccination,” Cypher wrote, taking aim at Singh’s ruling. “Certain managerial decisions are exempted from collective bargaining obligations where such decisions, as a matter of public policy, must be reserved to the public employer’s discretion.”

What this practically means in the short term remains somewhat unclear. This is essentially moot — in the colloquial sense, if not the legal one — as to the plaintiffs. As the Herald reported a few weeks ago, the city had come to agreements with the firefighters and superior officers not to enforce this mandate, and in turn those unions would drop their Department of Labor Relations complaints. The city was also working toward a similar agreement with the detectives.

Things remained murkier for the other 16,000-or-so city employees, who all now technically could be subject to the mandate. That said, city officials have said they’re currently reassessing the vax-mandate policy, and union officials have said they’ve received assurances that it won’t be put into effect.

Any employees, including the plaintiffs, could be subject to any future vaccine mandates — whether regarding COVID-19 or something else. That’s one of the reasons why the city kept pushing this case even when by its own admission the situation with COVID has changed and lessened from the depths of the omicron-variant-driven surge of January 2022.

The area where Cypher said the unions were most likely to have success in continued litigation is over the specifics of the requisite impact bargaining — particularly the short runway that Wu gave employees to get vaccinated. Cypher pointed out that the state, in similar circumstances, gave employees twice as long as the handful of weeks city workers originally were slated for before Wu pushed the deadline back.

There’s simply not enough evidence either way on this, he wrote, adding, “Whether the deadline for compliance with the defendants’ amended COVID-19 policy in fact was reasonable and necessary is still the subject of a pending matter before an investigator of the Department of Labor Relations, following a remand by CERB (Commonwealth Employment Relations Board).”

Patrick Bryant, the attorney for the superior officers union, said, “We respect but disagree with the decision. Given that Mayor Wu administration never imposed the mandate against any employee and agreed to drop the mandate this month, the decision has the effect of being a footnote to our labor relations on this issue.”

— This is a developing story …

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