In my Substack newsletter a few weeks ago I suggested the city should conduct an after-action review of its policies for dealing with the Covid pandemic, mostly to learn lessons that might better prepare the city for the next public health crisis. I included an observation that I found it strange that there was never any public discussion that I heard about requiring city employees, particularly those in public safety who routinely interact with the public, to be vaccinated against Covid.

Two weeks ago, the Massachusetts Supreme Judicial Court issued a decision that touched on this issue. Boston Firefighters Union and others v. City of Boston (SJC-13347) involved the mandatory vaccination policy the city of Boston adopted for its employees. This decision did not rule on that policy itself, but on the procedural grounds followed by the city in adopting it.

Early in the pandemic when vaccines were first available, the city of Boston and the unions representing its public safety employees met and composed a memorandum of understanding that required employees to (1) be vaccinated, or (2) be tested for Covid weekly.

However, in December 2021, with the new Omicron variant causing Covid cases to spike, the city of Boston unilaterally changed the policy to require all employees to be vaccinated and eliminated the testing option. The plaintiff unions in this lawsuit objected and sued the city in Superior Court and sought a preliminary injunction that barred the city from enforcing the new policy until a trial had been held on the merits. The trial court denied the request for the injunction, so the unions appealed that finding to a single justice of the state’s Appeals Court (which is how appeals of injunctions are heard). That justice overturned the trial judge and issued the injunction against the city. The city complied with the injunction and did not enforce the new policy but appealed the single justice’s decision to the Supreme Judicial Court. That’s the issue that this new decision addresses.

The SJC held that the single justice was incorrect in their ruling and vacated the injunction. The Court provided the following context for the city’s unilateral change of the policy:

Throughout the lifespan of the pandemic, however, Covid-19 has continued to evolve genetically, giving rise to numerous variants of concern. Among the Covid-19 variants of concern was the Omicron variant during the fall and winter of 2021. According to Dr. Bisola Ojikutu, the executive director of the city’s public health commission, the Omicron variant likely was to spread so significantly and rapidly that the continued practice of allowing employees to go through weekly testing, as an alternative to vaccination, was insufficient to combat the spread of Covid-19.

The Court held that certain managerial decisions are exempted from collective bargaining obligations “where such decisions, as a matter of public policy, most be reserved to the public employer’s discretion.” Because the vaccination policy dealt not only with the health of the employees affected, but with the health of the residents of the city to whom public safety services were to be provided, removing the testing option from the vaccination policy “constituted a nondelegable policy decision that could not be the subject of decision bargaining . . .”

While the Court did hold that the city had the authority to unilaterally change its vaccination policy, it left open the question of whether the city was obligated to continue with “impact bargaining” to assess the consequences to employees of the policy even after the policy had been implemented. The Court stated that there was insufficient evidence in the record for them to rule on that particular issue, so the matter will return to the trial court for further hearings. Nevertheless, the SJC held that notwithstanding that issue, the issuance of the injunction by the appeals court judge was unjustified because any resulting damage found to have occurred (such as loss of employment) could be compensated monetarily after the fact and was not the type of irreparable harm needed to justify an injunction.