Massachusetts Appeals Court Issues Historic Injunction in Favor of Unions, Collective Bargaining

February 15, 2022

Mayor Michelle Wu and the City of Boston cannot mandate certain Boston employees be vaccinated as a condition of employment until strong legal claims by unions, including the Boston Police Superior Officers Federation are resolved, according to a thoughtful and independent analysis by Justice Sabita Singh of the Appeals Court. Attorney Patrick Bryant represented the Boston Police Superior Officers Federation, one of only three unions to seek an injunction against the mandate. The Boston Police Detectives Benevolent Society and Boston Firefighters, Local 718 are co-Plaintiffs to the suit.

Prior to December 2020, the City of Boston never required vaccination as a condition of employment. Mayor Marty Walsh did not require vaccinations after they started becoming widely available in January 2021. In August 2021, Acting Mayor Kim Janey announced a policy allowing unvaccinated employees to continue working provided that they submit weekly proof of being negative for COVID-19. Michelle Wu, then a candidate for Mayor, endorsed the policy at the time. After being elected Mayor, Wu executed an agreement with the Federation allowing unvaccinated employees to keep working with weekly testing. Ten days after signing the agreement, however, Mayor Wu announced, contrary to the agreements, a new policy requiring all employees to obtain a vaccine.

The Federation never challenged the benefits or efficacy of the coronavirus vaccines. After all, nearly 95 percent of its members are vaccinated. But the Federation sought to enforce its negotiated agreement, and, as such, filed a grievance, and an unfair labor practice. The Federation also demanded to meet with the City, but Mayor Wu's team ignored the Federation until one week before the deadline, and then met for less than 60 minutes.

Given the lack of responsiveness from City Hall, the Federation, the Fire Fighters and Detectives were forced to seek an injunction of the mandate until their legal claims were resolved. A superior court judge agreed that the unions likely were to succeed on their claims, but declined to enjoin the mandate. In a detailed 18-page decision, Justice Sabita Singh of the Appeals Court reversed.

Justice Singh agreed with Superior Court Judge Locke that the Unions were certain to succeed on their labor law claims against the City. "Thus, the unions have established a strong likelihood of success on the merits of their essential claim." She determined that Judge Locke gave short shrift to the Unions' claims of irreparable harm if the mandate was not enjoined. She found that the unvaccinated would suffer irreparable harm regardless of whether they became vaccinated. She wrote, "The likelihood employees will feel compelled to get vaccinated in order to maintain their employment, in circumstances where they are deprived of their union protections, cannot be adequately remedied through after-the-fact financial compensation." She also agreed that an injunction would result in minimal harm to the City, given that the City had relied upon unvaccinated employees to protect the public for two years, including during the Omicron surge.

Justice Singh agreed that the dispute was not over vaccines: "The question is not whether the vaccine mandate policy may be beneficial; rather, the question is whether any harm caused by city's inability to enforce the vaccine mandate policy as to the unions outweighs the harms to the unions and the employees they represent, in light of the unions' likelihood of success." She found that the City's claims of harm paled in comparison.

In a footnote, Justice Singh suggested that the City's exclusive emphasis on vaccination would not prevent transmission of the virus, because the City acknowledged the vaccinated can transmit the virus. "[T]he city's vaccine mandate policy does not require vaccinated employees to do any testing to ensure that they are negative for the virus. Thus, it appears that neither vaccination nor regular testing is a fail-safe method to prevent transmission."

In conclusion: "Given the limited harm to the city and the public health interest it seeks to promote, and the substantial harm likely to be sustained by the unions in the absence of an injunction, the balance of harms favors the issuance of an injunction to preserve the status quo, in view of the unions' likelihood of success on the merits."