Suffolk Superior Court Allows Governor Baker’s Vaccine Mandate to Go Into Effect Despite Challenge from Police Union

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On September 23, 2021, the Suffolk Superior Court issued a ruling in State Police Association of Massachusetts v. Commonwealth of Massachusetts, et al. (No. 2184-CV-02117), allowing Massachusetts Governor Charlie Baker’s October 17th deadline for mandatory vaccinations for all Commonwealth Executive employees to remain in effect. Siding with the Commonwealth, the Court denied motions from the State Police Association of Massachusetts (the “SPA” or “Union”) requesting a preliminary injunction and a temporary restraining order that would have paused the implementation of Executive Order 595 (the “Order”).

On August 19, 2021, Governor Baker issued the Order, which mandates the Human Resource Division (“HRD”) to establish a policy requiring that all employees of the Commonwealth’s Executive branch submit proof of full COVID-19 vaccination by October 17, 2021, as a condition of continued employment. The Order affects roughly 42,000 state employees. Notably, the policy is to allow for limited exemptions from the vaccine mandate for medical or religious reasons.

The day of the Order, the SPA – which represents roughly 1,800 members of the Department of State Police – issued a demand to bargain the impacts of the Order. On August 30, 2021, Commonwealth representatives met with members of the Union to discuss the Union’s proposed changes to the policy. These proposed changes included the option for Union members to engage in weekly testing, to be conducted while on-duty, and mask-wearing as an alternative to vaccination; treating October 17th as the date for starting, rather than completing, the vaccination process; and deeming any COVID-related illness suffered by a Union member as a line-of-duty injury, entitling the member to benefits.

On September 10, 2021, HRD sent an email to all Executive branch employees explaining how to verify vaccination and the date by which they would have to receive the first shot of a vaccine to comply with the mandate. In response, the Union wrote to Commonwealth representatives expressing concern that the mandate would go into effect without bargaining. The Commonwealth insisted that the October 17th deadline would not be changed.

Days later, the Union filed a Charge of Prohibited Practice with the Division of Labor Relations (“DLR”) and a complaint in Suffolk Superior Court seeking a declaration that the Commonwealth violated their obligation to bargain under G.L. c. 150 E, §10 and an injunction enjoining enforcement of the October 17th deadline until the parties negotiated to resolution or impasse.

In denying the Union’s request for an injunction, the Superior Court reasoned that neither the Union nor its members would suffer any irreparable harm from the mandate’s implementation and that the Union’s interest in effecting its right to bargain is outweighed by the Commonwealth’s more significant interest in protecting the health and safety of its workforce and the public.

This decision is important both for its holding that Commonwealth Executive employees must still submit proof of vaccination by October 17th and for its reasoning that the public interest in curbing the spread of COVID-19 outweighs the Union’s interest in effecting its right to bargain over the terms and conditions of employment. This reasoning may be used in other cases as precedent favoring employers’ vaccine mandates.

If you have any questions regarding the content of this update, or any other questions regarding the labor law implications of vaccine mandates, please contact us.

Massachusetts Appeals Court Holds that Employee May be Terminated for Exercising Right to Submit a Rebuttal to Personnel File

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Earlier this year, the Massachusetts Appeals Court issued a decision, Meehan v. Medical Information Technology, Inc., 99 Mass. App. Ct. 95 (2021), holding that terminating an employee solely for exercising his right to submit a written rebuttal to his personnel file pursuant to G.L. c. 149, §52C does not fall within the public policy exception to the general at-will employment rule.

Defendant employed Plaintiff as an at-will employee and placed him on a performance improvement plan (“PIP”). Approximately two weeks later, Plaintiff emailed a lengthy rebuttal to the PIP to his supervisor. That same day, Defendant’s management team met to discuss the rebuttal and decided to terminate Plaintiff’s employment immediately. Plaintiff’s legal counsel then protested his termination, filing a complaint in Superior Court asserting wrongful termination in violation of public policy.

Defendant moved to dismiss the Plaintiff’s complaint for failure to state a claim, arguing that even if it had terminated Meehan solely for submitting a rebuttal, that action did not fall within the public policy exception to the general at-will employment rule. The trial judge agreed, and the Massachusetts Appeals Court affirmed.

While the at-will employment doctrine holds that employment at-will can be terminated for any reason or no reason at all, Massachusetts courts have consistently recognized a narrow exception to this rule when termination runs contrary to a well-defined public policy. To qualify as an exception to the general rule, “the public policy must be well defined, important, and preferably embodied in a textual law source.” Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 636 (2012). The Supreme Judicial Court has recognized three categories of activities that fall within the public policy exception: “employees who are terminated for asserting a legally guaranteed right (e.g., filing [a] workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989).

Although section 52C provides that an employee who disagrees with information contained in their personnel record “may submit a written statement explaining the employee’s position,” the Appeals Court held that this right does not fall within any of the three protected categories. The Court reasoned that the section is neither sufficiently important nor clearly defined enough to justify the exception. Since section 52C only provides a right of rebuttal to information in the personnel record – which, by definition, is an internal record of the employer – the Court reasoned that these rebuttals have no effect on the public in general.

Employers must remain careful, however, and should not be tempted to read Meehan’s holding beyond the narrow circumstances of the case. For instance, it remains uncertain whether the outcome would change if the rebuttal referenced activities that clearly fall within the public policy exception, such as filing a workers’ compensation claim or claiming violations of anti-discrimination laws. It is also unclear whether Meehan’s holding can be extended to any other section 52C rights, including the right to request one’s personnel file.

The Supreme Judicial Court has agreed to conduct a further review of this decision. Until the Supreme Judicial Court issues its ruling on this matter, Meehan will continue to leave employers without clear answers on the legality of terminating an employee based on the submission of a rebuttal. Accordingly, employers should continue to use caution before terminating an employee based solely on the submission of a rebuttal to their personnel file, especially when the contents of the rebuttal may concern protected activity.

This update is provided for informational purposes only and should not be considered legal advice.

Federal Court Permits Employee to Bring Both Title VII and Title IX Actions Against Educational Institutions for Gender Discrimination

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On August 12, 2021, the U.S. District Court of Massachusetts issued a decision, Harrington v. Lesley University, et al. (20-11718-DPW) holding that employees of educational institutions that receive federal financial assistance may bring discrimination claims under both the Title VII and the Title IX statutes, subject to the limitations of each.

Defendant Lesley University hired the plaintiff as an art librarian in 2016.  She alleged that shortly after her hiring, her direct supervisor (also named as a defendant) engaged in nonconsensual, sexualized physical contact and made sexually charged comments toward her.  In 2018, she filed an internal complaint with the Title IX Coordinator, which was not resolved.  Two years later, she filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”) alleging violations of Title VII, as well as a lawsuit in Massachusetts superior court alleging discrimination, harassment and retaliation under Title IX.  Ultimately, the plaintiff combined the MCAD and superior court complaints and they were removed to federal court.

Defendants sought to dismiss the Title VII and Title IX claims.  In particular, they argued that the statute of limitations with respect to the Title VII claim had passed and that the plaintiff could not bring a cause of action under Title IX as an employee.  The court agreed with the limitations argument as to Title VII because the plaintiff had not complied with the requirement that a complaint be filed with the MCAD within 300 days of the latest discriminatory event.

As to the Title IX claim, the court rejected an argument that Title IX claims are limited to students.  Title IX provides that “[n]o person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  While there is a split among the federal appellate courts on this issue, the Court of Appeals in this circuit has expressly rejected that result.  The district court therefore held that the term “person” in Title IX “encompasses claims of both students and employees of federal funded educational programs and activities.”  The court refused to adopt an additional theory that Title IX’s statutory scheme otherwise precludes an employee from bringing a sex discrimination claim.

This decision is an important reminder for school districts to ensure that learning environments and workplaces are free of sex-based discrimination or harassment.  It is also a reminder that while most Title IX claims may be brought by students, a school district should be alert to the fact that a gender discrimination claim by an employee may invoke both the Title IX process and the Title VII/Human Resources process.  Our office frequently provides training to educational institutions on how to properly investigate and respond to allegations of sex-based misconduct.  Moreover, we are pleased to review policies responsive to obligations under Title VII and Title IX.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

DESE Issues Mask Mandate for 2021-2022 School Year

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On August 25, 2021, the Massachusetts Department of Elementary and Secondary Education (“DESE”) implemented a requirement that all public school students (age 5 and above), staff members and building visitors wear a mask indoors through at least October 1, 2021.  In particular, the mandate specifies that:

  • Masks should cover an individual’s nose and mouth;
  • While students younger than 5 years old are not required to wear a mask, it is strongly recommended;
  • Districts should honor medical and behavioral reasons that would exempt individuals from the mask requirement;
  • The mask requirement does not apply indoors when an individual is eating, drinking, taking a mask break or when necessary to participate in an elective (i.e. wind instruments in band);
  • Districts should have disposable masks available for students who need them;
  • Consistent with a federal public health order, masks must be worn on school buses;
  • Districts should consult their discipline policies and legal counsel in addressing student discipline for failure to wear a mask;
  • Districts must submit a plan to DESE confirming health and safety procedures by September 3, 2021.

Lastly, the mandate provides after October 1st, school districts that can demonstrate that 80% or more of students and staff are vaccinated will no longer be subject to the DESE mask mandate.  DESE will provide more guidance ahead of October 1st in how school districts can demonstrate this vaccination rate.

If you have any questions regarding this mandate or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

DESE Updates Masking Guidelines

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On July 30, 2021, the Massachusetts Department of Elementary and Secondary Education (“DESE”) released a memorandum containing updated guidelines on masking, COVID-19 testing, and quarantine protocols – the guidance can be found here: DESE Guidance.

Guidelines on masking are as follows:

  • DESE strongly recommends that all students in kindergarten through grade 6 wear masks when indoors.
  • DESE strongly recommends that unvaccinated staff in all grades, unvaccinated students in grades 7 and above, and unvaccinated visitors wear masks indoors.
  • Masks are not necessary outdoors or while eating.
  • DESE recommends that schools allow vaccinated students to remain unmasked.
  • Individuals at heightened risk for severe disease from COVID-19, or with a household member who is at high risk, are encouraged to wear masks
  • By federal public health order, all students and staff are required to wear masks on school buses.
  • All staff and students must wear masks while in student health offices.

DESE further encourages Districts to maintain or establish a plan for COVID-19 testing in schools, including both diagnostics testing and pooled testing for students.

Additional guidance from DESE is forthcoming.

This update is provided for informational purposes only and should not be considered legal advice.

Appeals Court Addresses Public Records Law Requirements for Public Bodies

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On July 19, 2021, the Appeals Court issued a decision, Bradley v. Records Access Officer, Department of State Police (20-P-0419) holding a public body violated M.G.L. c. 66, §§ 10 and 10A, (the “Public Records Law”) in ignoring an individual’s requests for public records and directives from the Commonwealth’s Supervisor of Public Records (“SPR”) to respond to the requests.

Beginning in September 2018, Adam Bradley (“Bradley”) began filing public records requests with the Department of State Police (“Department”).  The Department’s Record Access Officer (“RAO”) failed to respond to Bradley’s requests.  Bradley sought an order from SPR directing the Department’s RAO to respond to his requests.  SPR issued multiple orders, yet the RAO failed to respond despite the orders.

Consistent with the procedure set forth in the Public Records Law, Bradley filed a complaint in Superior Court alleging among other things, that the Department’s failure to respond constituted a violation of the Public Records Law.  While the Superior Court permitted the RAO’s motion to dismiss the complaint, the Appeals Court took an entirely different approach in finding  “blatant violations” of the Public Records Law.  In particular, the Appeals Court held that the RAO failed to abide by certain requirements of the Public Records Law, primarily, not issuing a response within the ten (10) business days of receipt of the request and ignoring orders from SPR to respond to the requests.  The Appeals Court also rejected the RAO’s post-hoc attempts to justify its failure to respond to the requests.

This decision serves as an important reminder for public bodies to fully understand their obligations under the Public Records Law.  Certain key responsibilities include:

  • Designating an RAO to respond to public records requests;
  • Issuing a response to a request within ten (10) business days of receipt of a request, which may:
    • Provide documents responsive to the request;
    • Deny the request and cite the statutory basis for denial;
    • Request clarification of the request;
    • Assess fees for time spent responding to the request;
    • Inform the requestor that additional time is needed to respond to the request.
  • Understanding the distinction between a request for documents and a request for information;
  • Understanding the categories of information that may be redacted or withheld in documents; and
  • Understanding the distinction between the Public Records Law and Open Meeting Law as it pertains to meeting minutes.

If you have any questions regarding the Public Records Law, please contact any of the attorneys below.  We are pleased to assist RAOs in properly responding to public records requests.

This update is provided for informational purposes only and should not be considered legal advice.

CDC Relaxes Guidelines on Masks In School

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On July 9, 2021 the CDC updated its guidance for schools, saying that only individuals who are not fully vaccinated need to wear masks while indoors and directed all schools to reopen, even in areas where community transmission of COVID-19 is elevated. Additionally, in general people do not need to wear masks when outdoors (i.e., participating in outdoor play, recess, and physical education activities). Where the needs of the community so require, however, the guidelines do allow school administrators to opt to make mask use universally required, regardless of vaccination status.

According to the CDC, reasons can include:

  • Having a student population that is not yet eligible for vaccination (i.e., schools with grades prekindergarten – 6).
  • Increasing or substantially high COVID-19 transmission within the school or surrounding area.
  • Increasing community transmission of a variant that is spread easily among children or adolescents.
  • Lacking a system to monitor the vaccine status of students and/or teachers and staff.
  • Difficulty monitoring or enforcing mask policies that are not universal.
  • Awareness of low vaccination uptake within the student, family, or teacher/staff population or within the community.
  • Responding to community input that many teachers, staff, parents, or students would not participate via in-person learning if mask use is not universal.

This update is provided for informational purposes only and should not be considered legal advice.

Federal Court Rules Against Teacher Who Refused to Use Transgender Students’ Preferred Pronouns

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On July 12, 2021, a federal judge in Indiana ruled against a former teacher who alleged that his employer, a local high school, discriminated against him when it requested his resignation after the teacher continuously refused to call transgender students by their chosen names and pronouns.

The Indiana case was precipitated by the school district’s adoption of a policy that allowed transgender students to change the first names and pronouns listed in their school records and required all staff to address students accordingly. In response to the new policy, an orchestra teacher wrote a letter to his principal stating that he could not follow the name policy due to his religious beliefs. In an attempt to accommodate the teacher, school administrators proposed that the teacher call all students by their last names only and without any gender-based titles, such as Miss or Mr. The accommodation resulted in an undue hardship to the school and evidence demonstrated that at least two students suffered because of the last-names only accommodation. Ultimately, the school could not continue the accommodation and requested the teacher’s resignation.

Following his resignation in May of 2018, the teacher asserted thirteen allegations against the school and several of its employees, including a claim that the school discriminated against him by refusing to accommodate his religious belief that prohibited him from using a transgender student’s preferred name and pronouns. The majority of those claims were dismissed, leaving only the teacher’s claims against the school for failure to accommodate and retaliation under Title VII for the teacher’s religious beliefs. The court ruled in favor of the school on both claims.

The court held that the teacher’s religious opposition to transgenderism was directly at odds with the school’s policy of respect for transgender students. Therefore, as a matter of law, the school could not accommodate the teacher’s religious beliefs. Quoting Shakespeare, the court wrote “[w]hat’s in a name? William Shakespeare suggested maybe not much, for ‘that which we call a rose, by any other name would smell as sweet.’ But a transgender individual may answer that question very differently, as being referred to by a name matching one’s identity can provide a great deal of support and affirmation.”

The Indiana decision is the most recent in a line of cases brought by teachers who claim they were unfairly disciplined for refusing to use the preferred names or pronouns of transgender students. In Massachusetts, DESE has published guidance for Massachusetts public schools on creating a safe and supportive school environment. On the issue of names and pronouns DESE advises that school personnel should use the student’s chosen name and pronouns appropriate to a student’s gender identity, regardless of the student’s assigned sex at birth.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Court Denies New Hampshire Income Tax Lawsuit

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On June 28, 2021, the U.S. Supreme Court declined to hear a lawsuit filed by the State of New Hampshire asserting that a pandemic-era Massachusetts’s income tax policy was unconstitutional. At issue was a temporary tax rule adopted by Massachusetts that sought to maintain the pre-pandemic status quo for filing obligations, and thereby spare Massachusetts employers of additional compliance burdens. Under the rule, non-resident employees who worked in Massachusetts before the state of emergency continued to be taxed in the same proportion as during the immediate pre-pandemic period, regardless of whether employees completed work in-person or remotely. The Supreme Court denied New Hampshire’s motion for leave to file bill of complaint.

This update is provided for informational purposes only and should not be considered legal or tax advice.

Supreme Court Issues Important Decision Ruling that a Student’s Suspension from Cheerleading Based on Her “Off-Campus” Snapchat Post Violated the First Amendment but Also Indicating that Some “Off-Campus” Speech – Such as Bullying or Harassment – May be Regulated

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The Specific Parameters Remain to be Developed in the Lower Courts, Including a Pending Cyberbullying Case in which VDH, Working with the NSBA, has Filed a Brief. 

 

More than 50 years ago, the Supreme Court issued a landmark decision regarding student speech rights. In Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), the Court made its famous pronouncement that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Recognizing the need for discipline and a focus on learning in schools, the Court identified two circumstances in which regulation/discipline would be appropriate: (1) where a student’s speech causes “material and substantial disruption” of the school, and (2) where the speech “infringes or interferes with” the “rights” of others.

In 1969, the internet, cell phones and social media were all decades in the future and few could even imagine how a student’s speech made from a location outside the “schoolhouse gate” – “off campus” – could nonetheless permeate the school community and affect other students. For the past two decades, the lower courts have wrestled with the task of applying Tinker to a culture in which student speech increasingly takes place through electronic media used in remote locations.

On June 23, 2021 the Court finally applied Tinker to the digital age in Mahanoy Area Sch. District v. B.L., No. 20-255 (2021). The decision is important but, not surprisingly, precise guidance for lower courts and for school districts is limited. The case decided by the Court involved one student’s post on Snapchat. It took place at a remote location, did not target any specific students or school staff, and was limited to a vulgarity-laced rant about the school’s cheerleading program. There was no evidence that it had any effect on the school’s learning environment. Notwithstanding this, the school district imposed upon the student a one-year suspension from the cheerleading program. Based on these facts, the Court in an 8-1 decision held that the school’s one-year suspension of the student from cheerleading activities violated her First Amendment rights.

More important than the Court’s holding in the specific case is the Court’s further statement that “the special characteristics that give schools additional license to regulate student speech [do not] always disappear when a school regulates speech that takes place off campus.” Recognizing that certain attributes of student speech outside the school or its programs mean that schools have less “leeway” in regulating that speech, the Court has left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference.” But the Court nonetheless suggested several areas in which discipline for off-campus speech by students will still be appropriate under the First Amendment.

These include speech that involves “serious or severe bullying or harassment targeting particular individuals”, “threats aimed at teachers or other students”, and “failure to follow rules” pertaining to “online school activities.”  The Court declined to “determine precisely…the length or content of any such list of appropriate exceptions or carveouts.” The precise parameters that govern school districts’ application of Tinker to “off-campus” speech now await explication by the lower courts.

One such case is currently pending in the United States Court of Appeals for the First Circuit – Doe v. Hopkinton Public Schools, No. 20-1950. In that case several members of a Snapchat group and the school’s hockey team had demeaned another student in Snapchat posts and at team events, causing the student to refuse to try out for another sport, to withdraw from a chosen class, and ultimately to transfer from the school. Suspensions ensued based on violation of the Massachusetts Anti-Bullying law, G.L. c. 71, §37O. Two students who had only been tangentially involved in the Snapchat posts filed suit claiming a violation of their student speech rights, but the federal district court rejected their claim, resulting in further appeal. The case has been briefed and awaits oral argument and eventual decision.

VDH attorney John Foskett has worked with the National School Boards Association in Doe v. Hopkinton Public Schools and has filed an amicus curiae (“friend of the court”) brief that urges the court to uphold the school’s discipline. In the brief, we have focused on the “second prong” in the Tinker decision, which recognizes a school’s authority to regulate student speech that infringes another student’s rights in school. The brief argues that this prong of Tinker clearly permits schools to prevent and punish cyberbullying and its harmful impacts even though the speech generally occurs “off campus.” The brief, which was filed in May 2021, asserts that the lower court’s decision in B.L. did not bar or limit a school’s power to regulate off campus speech that constitutes bullying or harassment. It now appears that the Supreme Court has expressly agreed that this is a permissible area for discipline without violating a student’s speech rights. As noted, the precise contours of that authority must be worked out on a case-by-case basis. Doe v. Hopkinton Public Schools appears likely to be one of the first federal appellate decisions to address the meaning of B.L. in this context.

As further guidance is developed, school districts must keep the following in mind before a student is disciplined for statements made on social media:

Student speech that can be regulated if it takes place during school or school programs may not be subject to discipline if it is made outside school hours and “off campus” unless it fits certain criteria, such as cyberbullying, harassment, or threats that target a specific student/students or staff.

Decisions regarding student discipline for speech that occurs outside of school should be made after consultation with the district’s legal counsel.

This update is provided for informational purposes only and should not be considered legal advice.