Massachusetts Courts Deny Injunctions In Vaccination Cases

This article appears in the February 2022 issue of our monthly newsletter, Public Safety Labor News.

The State Police Association of Massachusetts is the exclusive bargaining unit for the approximately 1,800 members of the Department of State Police. On Au­gust 19, 2021, Massachusetts’ governor issued an executive order requiring that all employees of the executive branch prove that they had received full COVID-19 vaccination by October 17, 2021 and mandating full vaccination going forward. The Order also requires that the policy provide for progressive discipline, up to and including termination, for failure to comply with the vaccine mandate, or for lying about one’s vaccination status. The policy allows for “limited” exemptions from the vaccine requirement for medical or religious reasons.

The Association immediately issued a demand to bargain the impacts of the Order. The Commonwealth and the Association met once, after which the As­sociation submitted its own proposed policy. The Association’s proposed policy allowed members, as an alternative to vaccination, to engage in weekly testing, to be conducted while on-duty at a department facility, as well as mask-wearing.

On Sept. 10, 2021, the Commonwealth sent an email to employees explain­ing how to verify that they had received the vaccine and how to seek a medical or religious exemption. When subsequent meetings failed to produce any agreement, the Association filed a Charge of Prohibited Practice with the Division of Labor Relations (DLR), the agency charged with enforcing the public employee collective bargaining law. At roughly the same time, the Association sued, seeking an injunction putting the October 17, 2021 deadline for full vaccination on hold until either the parties negotiated to resolution or impasse, or DLR proceedings were concluded.

A trial court judge denied the request for an injunction. The Court began with the proposition that there are three essential elements to obtaining an injunction: (1) that the party seeking the injunction is likely to succeed on the merits of its claims; (2) the party will suffer irreparable harm if injunctive relief is denied; and (3) the harm if the injunction is denied outweighs the harm if the injunction is granted.

The Court found that the Association failed to prove two of the three required elements. The Court began by addressing the issue of “irreparable harm,” noting that “the Association identifies two measures of irreparable harm its members will suffer if the October 17 deadline for full vaccination is not suspended until either negotiations or DLR proceedings are completed. First, members who opt to comply with the mandate will lose the ability to choose which vaccine they receive, as it is too late to be fully vaccinated with the Moderna vaccine by October 17 (because of the time required between shots), and there are only days remaining in which one could timely get the first Pfizer shot. Second, the Association argues that it meaningfully bargain at least some of the terms of the policy.

“The Court agrees with the Common­wealth’s contention that these harms are, at bottom, economic harms which can be remedied through the administrative process, and therefore do not comprise irreparable harm warranting injunctive relief. Specifically, an employee who wishes to receive the Pfizer or Moderna vaccine but has missed the deadline for the first shot can, in fact, still do so. Similarly, an employee who objects to any term of the policy which the Association contends it has the statutory right to negotiate, has the option of refusing vaccination altogether until negotiations are completed.

“Of course, either of these actions may subject the employee to discipline, up to and including termination, under the policy. However, if the Commonwealth is eventually found to have violated its bargaining obligations, discipline imposed under the policy can be rescinded and the employee made whole through an award of back pay, removal of discipline from a personnel file, and similar measures. There is no irreparable harm where availability of relief through grievance arbitrations means that, if a mandatory vaccine policy is found to have violated a union’s rights, there will be an adequate remedy for any harm caused by policy’s implementation.

“Also, while the Association has a significant interest in effecting its right to bargain the terms and conditions of its members’ employment (and assuming, without deciding, that the Common­wealth has impinged upon that right), the Court concludes that this interest is outweighed by the Commonwealth’s more significant interest in protecting the health and safety of its workforce (including the Commonwealth Police), those who come into contact with its workforce, and the public in general. And, the Common­wealth has established that the best way to promote this interest is by vaccinating as many people as possible, as quickly as possible. As such, suspending the dead­line for Union members to obtain full vaccination would be against the public interest which the defendants are charged with protecting, and cause more harm to the Commonwealth than is caused to the Association by the denial of such relief.”

In a very similar case, a Massachusetts trial court rejected the request of three unions for an injunction against the City of Boston’s vaccination mandate. The lawsuit, filed by the Boston Police Supe­rior Officers Federation, Boston Police Detectives Benevolent Society, and Bos­ton Firefighters Union, claimed the City breached both its bargaining obligations and a previously-reached “vaccinate or test” memorandum of agreement when, in response to the Omicron variant, it announced that vaccination would become a requirement subject to religious and medical exemptions.

Focusing on the requirement that “irreparable injury” must exist for an injunction to issue, the Court held: “Ac­cording to the December 2021 vaccine mandate, plaintiff members who have failed to provide proof of vaccination will be subject to an adverse employment con­sequence, including suspension without pay and eventual termination. While the consequences are undoubtedly injurious to the affected employee, they do not constitute ‘irreparable harm’ for purposes of injunctive relief.”

The Court also based its decision on public health considerations: ““In light of the persistent and perilous public health emergency caused by COVID-19, the importance of vaccinations cannot be overstated, and the harm from preventing the vaccine mandate from going into place, greatly outweighs any harm to the plain­tiffs if the requested injunction does not issue. COVID-19 vaccines have prevented countless hospitalizations and deaths since they became available, and it is almost unthinkable as to what the world would look like without them.”

State Police Association of Massachu­setts v. Commonwealth of Massachusetts, 2021 WL 5630383 (Mass. App. Ct. 2021); Boston Police Superior Officers Federation v. Wu, No. 2284CV90001-H (Mass. Super. Jan. 14, 2022).

Also in the February 2022 issue:

  • Contracts In The News
  • Pension Benefits Not Offset By Workers’ Comp Attorney Fees
  • Immunity Bars Officer’s Suit For Canine Bite
  • ‘No-Holds-Barred Meeting’ Leads To PTSD Claim
  • City Too Late To Raise Vertigo Defense To Officer’s Comp Claim
  • Discipline Briefs
  • No Reasonable Expectation Of Privacy In Cell Phone Backups On Work Computer
  • Court Rejects Challenge To Arbitrator’s Opinion In Excessive Force Case
  • Continued Confusion Over Bargaining In Public
  • Firefighter’s Residency Violation ‘Misconduct,’ Forfeiting Unemployment Comp
  • Contract Waives Union’s Right To Bargain Over Shift Change
  • ‘Shy Bladder’ Leads To Firefighter’s Reinstatement
  • Bargaining Updates
  • CPI Updates
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