On March 30, 2023, the Supreme Judicial Court issued a decision that clarifies a public employer’s bargaining obligations under G. L. Chapter 150E in the context of a public health emergency – here, the rapid onset of the Omicron variant of COVID-19 in late 2021. In Boston Firefighters Union, Local 718 v. City of Boston, No. SJC -13347, the court upheld the City’s decision to mandate vaccination of its employees in December 2021 and to engage in expedited impact bargaining. In doing so, the court reversed and vacated an injunction granted to three of the City’s unions by a single justice of the Appeals Court after the injunction had initially been denied by a Superior Court justice.
The City entered into a testing regimen with its unions in Fall, 2021. In mid-December 2021, however, confronted by the rapidly emerging and highly infectious Omicron variant, and based on the expert input of the City’s Public Health Commission, the Mayor issued a vaccine mandate requiring that City employees be vaccinated. At the same time the City initiated impact bargaining on an expedited basis. Three City unions, however, commenced unfair labor practice proceedings in the Department of Labor Relations, alleging that the City had violated its bargaining obligations and had repudiated testing MOAs. Simultaneously, these three unions sought a preliminary injunction in the Superior Court to prevent enforcement of the vaccine mandate. After hearing, that court denied the injunction in January 2022, holding that the unions had failed to establish the required elements of irreparable injury, a favorable balance of harms, and that an injunction was in the public interest. The unions sought relief from a single justice of the Appeals Court. On February 15, 2022, the single justice entered an injunction, ruling that the unions had shown a likelihood of success on the merits of their claim that the City had violated its bargaining obligations; that they had shown irreparable injury because mandatory vaccination would infringe employees’ rights to bodily integrity; and that the public interest was served by an injunction. The City appealed and on its own initiative the SJC assumed direct review of the appeal.
In its decision, the court first addressed whether the unions had a likelihood of success on the merits. The court decided that the City had no obligation to bargain the decision to require vaccination, holding:
Given the unique circumstances of the COVID-19 pandemic and its threat to the health and safety of the public, the decision to remove the testing alternative in the defendants’ COVID-19 policy constituted a nondelegable policy decision that could not be the subject of decision bargaining because any such requirement would have impinged directly on the defendants’ ability to provide essential public safety services to city residents.
Next, the court rejected the unions’ claim that the City repudiated the testing MOAs. Noting that there was no “express language” barring the City from deciding to require vaccination in the future, the court added that “any agreement to mandatory collective bargaining on an issue of public health and safety, in light of the emergency of the Omicron variant of COVID-19, likely would not have been enforceable” because the City could not bargain away its nondelegable duty to protect the public health.
Finally, regarding the City’s impact bargaining obligation the court held that “[e]xigent circumstances permit an employer to set a deadline for concluding impact bargaining and implementing a change in the conditions of employment, so long as the employer continues to bargain over the impacts”. The court validated the City’s claim “that the exigency of the COVID-19 pandemic necessitated the swift removal of the testing alternative to mandatory vaccination against COVID-19”. The sole limitation on this ruling was an ancillary issue left pending in the DLR, i.e., whether the City’s initial three-week deadline was “reasonable and necessary”.
The court also ruled that the decision by the single justice was an abuse of discretion regarding the other elements required for an injunction. The court first rejected the finding of “irreparable injury” to employees. It stated “[w]hile the circumstances giving rise to the threat of discharge from employment were extraordinary, i.e., the COVID-19 pandemic and mandatory vaccination against COVID-19, …,: the harm to the plaintiffs — the loss of employment — is still economic, …, as they could have continued to refuse to become vaccinated and instead challenged the decision both in court and before CERB.” Second, the court held the unions failed to show that the balance of harms favored them or that the injunction was in the public interest. It held 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”.
The SJC’s decision is an important clarification of a public employer’s bargaining obligations in the context of a public health emergency. It also illuminates the standard to be applied for determining irreparable injury where employees seek relief enjoining an employment action.
VDH attorneys John Foskett, Robert Hillman, and Ann Marie Noonan represented the City in this case. If you have any questions about the content of this update, please contact us. We are pleased to assist public employers in all matters related to collective bargaining.
This update is provided for informational purposes only and should not be considered legal advice.