Public Employers Must Bargain Over the Methods and Means of Fitness for Duty Examinations

Under Department of Labor Relations/Commonwealth Employment Relations Board precedent a public employer has the nonbargainable prerogative to require employees to undergo fitness for duty examinations. Until recently, however, it was an open question whether the method and means by which these examinations are conducted is a mandatory subject of bargaining. On December 30, 2021, the Appeals Court resolved that question when it affirmed the decision of the CERB in City of Newton v. Commonwealth Employment Relations Board, holding that the employer was required to engage in bargaining over the criteria and procedures for fitness for duty examinations.

The facts giving rise to the dispute first arose in 2016, when the police chief ordered a captain to undergo physical and psychological “fitness for duty” examinations. The order followed a recent uptick in the number of personal days the employee had taken following deaths in his family and a personal injury not related to his work. In response to the chief’s directive the superior officers demanded that the city bargain over (1) the selection of the psychological examiner; (2) the information to be transmitted to the examiner; (3) the testing protocol to be used; and (4) what results were to be generated and to whom the results were to be communicated. When the city refused, the union filed a charge of prohibited practice and ultimately the DLR hearing officer and then the CERB found a violation, following which the city appealed.

The Appeals Court affirmed. Noting that “the decision to order a fitness for duty examination is within the city’s managerial prerogative and is not subject to mandatory bargaining”, it rejected the city’s several arguments regarding the manner in which the examination is conducted. First the city asserted that a bargaining requirement would “unduly impinge on its freedom to perform its public functions.” The court disagreed, ruling that the city’s interest in public safety is not undercut by the requirement that it engage in impact bargaining over the procedures and criteria for examinations. The court added that the city and union had previously engaged in successful negotiations over a drug and alcohol abuse policy, which included standards for initiating testing and testing administration. Next, the city argued that it was insulated from its duty to bargain based on the Civil Service Law, G.L. chapter 31. The court again disagreed, finding no conflict between the two laws and, therefore, that the city’s obligation to negotiate prevailed. Finally, the city argued that the union waived its right to bargain based on certain provisions in the parties’ contract, including the “management rights” clause. Again, the court rejected this argument as well because the agreement’s language failed to show a “clear and unmistakable waiver” of bargaining over the manner and means of determining fitness for duty examinations.

The court summarized by stating the “fact that mere completion of the examinations did not result in [the employee]’s reinstatement, and that he remained suspended until he had met whatever fitness criteria applied to the examinations, makes the point that the ‘methods and means’ of the decision were critical to the terms of [his] continued employment.” The court emphasized the “distinction between ordering an examination and the procedures for implementation, e.g., choosing an examiner, and the method and means by which the examination will be carried out”.

Public employers should keep in mind that while the decision to have an employee undergo a fitness for duty examination is the employers to make, how the examination will be implemented must be negotiated with the relevant union. Because in a given circumstance it may be difficult to clearly separate the two concepts, an employer that is uncertain about its obligations should consult with its counsel.

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

CDC Reduces Isolation Time for Individuals Exposed to COVID-19

On Monday, December 27, 2021, the Centers for Disease Control and Prevention (“CDC”) shortened its recommended isolation time for individuals exposed to COVID-19. Guidelines now recommend that individuals who are unvaccinated or have not received the vaccine booster quarantine for five (5) days, followed by strict mask use for an additional five (5) days. Individuals who have received their vaccine booster do not need to quarantine following an exposure but should wear a fitted mask for the ten (10) days following the exposure. For all individuals who have been exposed, the CDC advises that best practice is to receive a test five (5) days after the initial exposure.

As part of its update, the CDC also reduced the quarantine period for individuals who have tested positive for COVID-19 but are asymptomatic from ten (10) days to five (5) days. If individuals remain asymptomatic following the five (5) day isolation period, they may leave quarantine if they continue to mask for five (5) days. Massachusetts has adopted CDC guidelines as follows:

  • Isolation: Individuals who test positive for COVID-19, regardless of vaccination status, must isolate for five (5) days. If, after those five (5) days individuals remain asymptomatic or symptoms are resolving, they may leave isolation if they continue to mask for five (5) days.
  • Quarantine: Individuals exposed to COVID-19 who are asymptomatic and have received the COVID-19 booster or have completed the primary series of the Pfizer or Moderna vaccine within the last six months do not need to quarantine following an exposure. In lieu of quarantine, however, individuals must wear a fitted mask for the ten (10) days following the exposure and, if possible, receive a test five (5) days after the initial exposure.
  • Quarantine: Individuals exposed to COVID-19 who are asymptomatic but are unvaccinated or are eligible for the booster and have not yet received it should quarantine for five (5) days, followed by strict mask use for an additional five (5) days. If quarantine is not possible individuals must wear a mask for ten (10) days. If possible exposed individuals should receive a test five (5) days after the initial exposure.

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

SJC Holds That Employers May Not Terminate At-Will Employees for Submitting Rebuttal Statements

On December 17, 2021, the Massachusetts Supreme Judicial Court issued its decision in Meehan v. Medical Information Technology, Inc., reversing the dismissal of the Superior Court. The issue before the court was whether an employer can terminate an at-will employee “simply for exercising the right to file a rebuttal to be included in his personnel file” as is permitted under the Massachusetts Personnel Records Act.  Answering in the negative, the court held that such a termination would violate the public policy exception to at-will employment.

Meehan had worked as a sales representative for Medical Information Technology, Inc. (“Meditech”) since 2010. In 2017, Meditech transferred Meehan to a newly created sales specialist position. The new position had significantly different job responsibilities and differed in compensation structure. While employed in this position, Meehan was placed on a performance improvement plan. In response to his placement on the performance improvement plan, Meehan submitted a lengthy rebuttal statement. Members of Meditech’s management team met that same day to discuss Meehan’s rebuttal and decided to terminate him immediately.

Generally, an at-will employee may be terminated for any non-discriminatory reason or no reason at all. However, Massachusetts courts have recognized a narrow exception to this at-will rule where the discharge violates public policy. The public policy exception has been applied in circumstances where an employee was discharged for asserting a legally guaranteed right. A basis for finding such a right “can easily be found when the Legislature has expressed a policy position concerning the rights of employees and an employer discharges an at-will employee in violation of that established right, unless no common law rule is needed because the Legislature has provided a statutory remedy.” Here, the court found that the Personnel Records Act expressed a clear legislative position, protecting an employee’s right to submit a rebuttal statement. Specifically, M.G.L. c. 149, § 52C provides that “if there is a disagreement with any information contained in a personnel record . . . the employee may submit a written statement explaining the employee’s position which shall thereupon be contained [in the personnel record.]”  The Court found that because the Act is silent on the issue of termination or retaliation for exercising the right itself, the common-law wrongful discharge action is the appropriate remedy. Thus, the Superior Court’s dismissal of the action was inappropriate.

In so holding, the Court expressly rejected the contention that recognizing the right of rebuttal would extend just cause protection to at-will employees. Indeed, rebuttal statements do not provide any additional protections to at-will employees; rather, they merely memorialize the employee’s position regarding an issue in dispute.

Moving forward, the holding in Meehan makes clear that an employer retains the right to terminate an employee for any non-discriminatory reason or no reason.  However, an employer cannot terminate an at-will employee for exercising the employee’s right to file a rebuttal statement in the employee’s personnel file pursuant to M.G.L. chapter 149 §52C.

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

Nick Dominello to Present at 2021 Massachusetts Association of School Business Officials (“MASBO”) at their December Bi-Monthly Meeting

On Thursday, December 9, 2021 Nick will present at the MASBO Bi-Monthly Meeting in Milford.  Nick will be discussing how to use collective bargaining to increase student achievement.

Liz Valerio and Nick Dominello Presented at 2021 Massachusetts Association of School Committees (“MASC”) and Massachusetts Association of School Superintendents (“MASS”) Annual Joint Conference

On Thursday, November 4, 2021 Liz and Nick presented at the MASC/MASS Annual Joint Conference in Hyannis.  Liz and Nick discussed trends in collective bargaining and COVID related concerns including vaccine rollout, remote learning options in the future and ongoing expectations for families and staff.

The First Circuit Court of Appeals Holds That “Off Campus” Cyberbullying by Students can be a Basis for Discipline without Violating the First Amendment or the Massachusetts Student Speech Statute

This past June the Supreme Court issued a landmark decision regarding student speech rights in the digital age. In Mahanoy Area Sch. District v. B.L., No. 20-255 (2021), the Court applied the half-century-old decision in Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), which governs student speech rights under the First Amendment, to student speech that occurs “off campus”/remotely by using modern electronic technology/social media. The Court held that schools have “less leeway” to regulate such speech than they do regarding speech that takes place in the school or during school programs. The Court therefore ruled that the school district had violated a student’s rights under Tinker when it suspended her for a post on Snapchat which 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. In its opinion, however, the Mahanoy Court left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference” and suggested several areas in which discipline for off-campus speech by students may still be appropriate under the First Amendment. These include speech that involves “serious or severe bullying or harassment targeting particular individuals”.

The United State Court of Appeals for the First Circuit has now issued the first federal appellate decision in the country applying Mahanoy to “off campus” speech. On November 19, 2021, the court decided Doe v. Hopkinton Public Schools, No. 20-1950 (1st Cir. 2021), a case in which attorney John Foskett of Valerio Dominello & Hillman LLC worked with the National Association of School Boards to file an amicus brief.

In Doe, 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 involved in the “off campus” Snapchat posts filed suit claiming a violation of their speech rights under the First Amendment and under the Massachusetts Student Speech statute, G.L. c. 71, § 82. The district court rejected their claims and, in its decision on appeal, the Court of Appeals has affirmed the judgment and has upheld the discipline.

Applying Mahanoy’s interpretation of Tinker, the Doe court ruled that “schools have a special interest in regulating speech that involves ‘the invasion of the rights of others’” and that “[t]his pedagogical interest remains even in off-campus circumstances.” The court distinguished the “general statement of discontent” in Mahanoy, finding it “qualitatively different from bullying that targets and invades the rights of an individual student.” The court next rejected the students’ argument that their minimal role of merely posting on the Snapchat site immunized their conduct. Pointing out that bullying is often a group activity, the court held that the school “reasonably concluded” that the plaintiffs’ activity “emboldened the bullies and encouraged others in the invasion of [the target’s] rights”. It ruled that “speech that actively encourages … direct or face-to-face bullying conduct is not constitutionally protected” and that “[t]he test under Tinker is objective, focusing on the reasonableness of the school’s response, not the intent of the student.”

The plaintiffs also claimed that their speech was protected under G.L. c. 71, § 82 because that statute uses language suggesting that only speech that “disrupts” the school may be regulated, which is similar to language that was used in Tinker. The court disagreed. It pointed out that the Massachusetts statute was enacted well before adoption of the bullying statute in § 37O and that the latter contains additional language that also was used in Tinker, proscribing conduct that “‘infringes on the rights of the victim at school’”. The court refused to interpret § 82 in a way such that it would “conflict directly with” § 37O or that would render the bullying law “meaningless.”

Doe is significant because it is the first federal appellate decision in the country that addresses “off campus” speech by students in light of the Supreme Court’s Mahanoy ruling. Importantly, it confirms that at least some such “off campus” speech can be the basis for student discipline without violating the First Amendment. As suggested in Mahanoy, whether that speech in a given situation may be regulated will depend to a great extent on the specific facts – such as whether it sufficiently constitutes a “threat of harm”, “harassment”, or “infringes on the rights” of another student. Administrators should consult with school district counsel when these issues arise.

If you have any questions regarding the content of this update, please contact us.

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

OSHA’s Emergency Temporary Standards (ETS) on COVID-19 Vaccination and Testing

On November 16, 2021, the Occupational Safety and Health Administration (“OSHA”) announced that it would suspend the Emergency Temporary Standard (“ETS”) on COVID-19 Vaccination and Testing for the time being.  Our office published an advisory on November 5, 2021 addressing employer obligations to comply with the ETS.

The ETS went into effect on November 5, 2021.  However, on November 12th, the Fifth Circuit Court of Appeals granted a motion to stay enforcement of the ETS.  In response, OSHA has resolved to suspend all activities related to implementation and enforcement of the ETS.  Our office will continue to monitor the status of the ETS and employer obligations response to the ETS.

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.

Superior Court Denies Injunction Against DESE and Local District School Mask Mandates

Joining a continually increasing number of federal and state courts around the country, a justice of the Hampden Superior Court has denied a request for an injunction against the state-wide school mask mandate first ordered by the Commissioner of DESE on August 25, 2021 and against several local school districts’ school mask policies.

In The Family Freedom Endeavor, Inc. et al. v. Riley, et al., two entities and several individual parents brought six actions in various superior courts against DESE, eighteen school districts, and two municipalities, claiming that all lacked legal authority to issue school mask mandates and that these mandates violate various individual constitutional rights. At the request of all defendants, the cases were consolidated in the first-filed case in Hampden County and argument on the injunction requests was heard on October 26, 2021.

On November 16, 2021, the court issued a 15-page decision denying the requests. Addressing the claim against DESE first, the court held that G.L. c. 69, § 1B “unambiguously evinces a legislative intent that [DESE] ensure that students attend classes in a healthy and safe educational environment” and that DESE has “authority …during an unprecedented pandemic to establish policies to ensure safe in-person learning in public schools.” The court rejected an additional argument that there were no “exigent circumstances” that allowed DESE to act under its regulations, stating “the plaintiffs’ blanket denial of exigent circumstances and of the need for masks in schools contradicts the guidance issued by the CDC, the DPH, and the American Academy of Pediatrics.”

Regarding the authority of the local districts to issue school mask mandates, the court held that local entities have the power to “impose health related rules in their own schools” and that this authority has not been preempted by the Commonwealth because there is no conflict between DESE’s mask mandate and the local policies, and because the mandates are “guided by the DPH, other public health authorities, and medical experts.”

Last, the court emphatically rejected the claims that these mandates violate any constitutional rights. The court pointed out that parents do not have a “fundamental interest in not having their children masked at school”; that parental rights “do not include the liberty to expose the community or a child to communicable diseases”; and that these mandates “were created, tailored, and implemented in consultation with medical experts and on the basis of widely accepted public health recommendations.” Noting that the plaintiffs’ arguments “are premised upon nonauthoritative cases as well as thin and heavily contradicted evidence”, the court ruled that the mandates survive judicial review because “[t]hey serve the legitimate State interest of slowing the spread of COVID-19”. Accordingly, the court decided that the plaintiffs had failed to satisfy the requirements for enjoining the mask policies.

The court’s decision means that school districts have the authority to impose rational requirements to protect the health of students so long as those requirements do not conflict with DESE’s policies and orders. While the plaintiffs may try to seek some form of appellate review, the court’s decision is consistent with overwhelming authority throughout the United States and is both thorough and well-reasoned.

Local districts should consult with counsel regarding any questions about mask policies, including whether exemptions or accommodations apply in individual cases.

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

OSHA’s Emergency Temporary Standards (ETS) on COVID-19 Vaccination and Testing

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing.  The ETS takes effect upon publication in the Federal Register, November 5, 2021.  Covered employers have thirty (30) days to come into compliance with most aspects of the ETS, including vaccine mandates, but have sixty (60) days to comply with testing requirements.

The ETS Applies to Employers With 100 or More Employees:

The ETS covers employers with 100 or more employees, firm or company-wide.  OSHA expects this will cover approximately two-thirds of the nation’s private sector workforce.  Exempted from the ETS are workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors and workplaces where any employee provides healthcare services or healthcare support services and is subject to the requirements of the Healthcare ETS (§1910.502).

The ETS will also apply to public sector employees in states with OSHA State Plans.  OSHA’s Fact Sheet indicates public employers in states without OSHA State Plans will not be covered by the ETS.  The Massachusetts Department of Labor Standards (DLS), however, has not yet determined whether the ETS will apply to Massachusetts public sector employers.  Although Massachusetts does not have a State Plan, as many of you are aware, in 2018 the Massachusetts legislature passed An Act Relative to Standards of Employee Safety, which required public employers “provide public employees at least the level of protection provided under the federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq., including standards and provisions of the general duty clause contained in 29 U.S.C. 654.”  Given the intent of the legislature, the DLS may determine it is appropriate to enforce the ETS here in Massachusetts with public sector employees.

Testing Requirements:

The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless the employer adopts a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.  Regardless of which option they choose, employers will be required to determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.  At this time boosters are not required to be considered “fully vaccinated.”

Employer Option to Permit Testing In Lieu of Vaccination:

Employers who permit testing as an alternative to vaccination, must require employees who are not fully vaccinated to be tested for COVID-19 at least weekly.  And employees who are not fully vaccinated must wear a face covering when indoors or in a vehicle with another person for work purposes.  There is an exception for fully remote employees and/or those who only come into the workplace on a limited basis.  Those individuals must only be tested within seven (7) days prior to coming to the office.  Those who test positive for COVID-19 are excepted from testing for 90 days to avoid false positives but are required to continue to wear a face mask.

Employer Obligations to Support Employee Compliance:

  • Leave – employers must provide paid time off to employees to get vaccinated and to recover from any side effects from the vaccination.
  • Testing – employers are not required to pay for employees to be tested. (Employers may, however, reach agreements with unions that provide for employer paid/free testing).  Employers can offer on-site testing and can also use pool testing.
  • Employee Notice – employers must require employees to notify them if they test positive for COVID-19. Once notified, employers have an obligation to remove that employee from the workplace, regardless of vaccination status, and prohibit the employee from returning until certain criteria are met.

In releasing this ETS, OSHA made clear that it will continue to monitor COVID-19 trends and may modify and change the ETS as necessary.  In addition, although it takes effect immediately, the ETS is considered a proposal and OSHA seeks comments before finalizing.

The ETS can be found here: and a FAQ issued by OSHA can be found here:

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.

Update to Joint Advisory regarding Mandated Reporting Responsibilities of School Personnel in Cases of Suspected Child Abuse and Neglect

On October 27, 2021, the Department of Elementary and Secondary Education (DESE) issued an updated joint advisory with the Department of Children and Families (DCF) concerning mandated reporting responsibilities for school personnel in cases of suspected child abuse and neglect.  The update replaces the previous advisory on the same topic issued in 2010.

The updated advisory summarizes the mandated reporting law and answers common questions regarding the law and responsibilities of mandatory reporters.  In addition to school personnel having a duty to report, school committees continue to have a duty to inform teachers, administrators, and other professional staff regarding their reporting duties.  The advisory is intended to assist school committees in meeting this obligation.

A link to the reporting form is included in the updated advisory, making it easy for mandatory reporters to find and submit the required information consistent with Section 51A.

The definitions of “abuse” and “neglect” have been updated:

  • Adding “victimization of a child through sexual exploitation and/or human trafficking, whether or not the person responsible is a caregiver” to the definition of “abuse.” And noting the location of the actions do not impact that definition.
  • In addition, the advisory makes clear that “neglect” cannot be solely due to a parent or caregiver’s “disability or limited physical condition.”
  • The updated reference to “sexual exploitation or human trafficking” was added to various sections of the advisory, making clear that mandatory reporters are responsible for reporting when this conduct is suspected.

Additional guidance regarding a school or district’s ongoing concerns and concerns for children already involved with DCF or the courts in included in the update:

  • Even if a reporter is aware that a child is involved with DCF or the court the reporter must still report any suspected abuse or neglect, even when the reporter has already notified the child’s social worker.
  • Only if the concerns do not rise to the level of a 51A requirement, can the reporter limit notification to the social worker.
  • The guidance goes on to indicate that if a school or district has ongoing concerns after speaking to the social worker the school or district may reach out to the DCF Area Office and speak with the Area Program Manager or Director. When necessary, a school or district may also speak to the DCF Office of Ombudsman or the Office of the Child Advocate Complaint Line if they do not believe DCF is being responsive.

The updated advisory modifies DESE/DCF’s response to questions regarding reports of student harassment, assault or abuse by another student.  Previously the advisory indicated the matter “should be reported to DCF” and police.  The updated advisory is more nuanced and indicates responses will vary based on allegations, applicable laws, regulations, and policies, advising reporters and schools to consult with school counsel.  If abuse is suspected of a student under eighteen the guidance does, however, advise it be reported.

The updated advisory also notes the need to report abuse or neglect of disabled persons aged eighteen and over to the Disabled Persons Protection Commission (DPPC).

While the advisory previously discouraged districts from notifying parents or guardians of a DCF interview at school if the child could be placed at risk of further abuse or neglect, the updated advisory directs districts to consult with counsel regarding these questions.

The update emphasizes that reports of suspected abuse by school employees must be reported “immediately.”

The updated advisory can be found here:

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

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