Seyfarth Synopsis: We may be past the height of the COVID-19 pandemic, but decisions from COVID-19 vaccine litigation have the potential to affect far more than pandemic-specific employment practices. The Massachusetts Supreme Judicial Court recently issued an opinion affirming the City of Boston's power to impose certain health and safety policies on public workers without bargaining.
Factual Background
In August 2021, the City of Boston announced a policy that generally required all city employees, including public safety personnel, either to be vaccinated against COVID-19 or to provide weekly negative COVID-19 test results. The City and local firefighter unions memorialized the policy with a Memorandum of Agreement.
During the fall and winter of 2021, the Omicron variant of COVID-19 was spreading rapidly through the Commonwealth and sparked public health concerns nationwide. In December 2021, in response to advice from public health experts, the City and Mayor of Boston unilaterally amended the vaccine policy to remove the weekly testing option and require proof of vaccination as a condition of employment. All city employees were required to have at least one dose of a COVID-19 vaccine by January 15, 2022, and to be fully vaccinated by February 15, 2022. City employees who failed to verify their vaccination status would be subject to progressive discipline, ranging from unpaid leave to termination.
The Lawsuit
In response, Boston Firefighter and Police unions filed a complaint in Massachusetts Superior Court and sought a preliminary injunction. The Superior Court judge denied their request for injunctive relief, and plaintiffs appealed.
A Single Justice of the Massachusetts Appeals Court reversed and enjoined the City from implementing the amended policy pending final resolution of the matter, reasoning that the City's unilateral decision to amend the COVID-19 policy without bargaining with the plaintiffs was sufficient to demonstrate a likelihood of success on the merits, that the plaintiffs had sufficiently demonstrated irreparable harm, and that the balance of the harm favored the plaintiffs. The defendants appealed from the order of the Appeals Court justice, and the Massachusetts Supreme Judicial Court ("SJC") transferred the case sua sponte.
The SJC Decision
On March 30, 2023, the SJC reversed the Appeals Court Single Justice's decision and vacated the preliminary injunction. The Court held that the City was not required to bargain over the decision to amend the COVID-19 policy because "[c]ertain managerial decisions are exempted from collective bargaining obligations when such decisions, as a matter of public policy, must be reserved to the public employer's discretion." The decision to remove weekly testing as an alternative to vaccination was such a core managerial prerogative, in light of the unique circumstances presented by the pandemic, particularly during the late-2021 surge in infection rates. The SJC reached this decision without inquiring into the "wisdom" of such a policy choice. The SJC held that the plaintiffs had failed to demonstrate a likelihood of success on the merits of their claim that the City had violated its bargaining obligations with respect to the policy change.
When the City made the decision to unilaterally amend the COVID-19 policy, the Omicron variant was causing a surge in COVID-19 infections in the Commonwealth. Public health officials, including the executive director of Boston's Public Health Commission, stated that testing as an alternative to vaccination would not be sufficient to contain the spread of the new variant. The SJC reasoned that the policy decision was justifiable given the "concerns not only for the health of their employees, but also for the residents of the city, for whom the defendants were obligated to provide continued access to public safety services."
First, the SJC held that there was no likelihood of success on the merits with respect to the City's decision to amend the policy. The SJC held that the Memorandum of Agreement between the parties did not expressly require collective bargaining on the decision to amend the COVID-19 policy to remove the option for weekly testing. Further, the SJC held that even if the City had agreed to mandatory collective bargaining on an issue of public health and safety, the emergency presented by the Omicron variant would have likely rendered such an agreement unenforceable because the City has a nondelegable authority and responsibility to act in the interest of public health, safety, and welfare.
Next, the SJC held that the plaintiffs did not demonstrate irreparable harm. Purely economic harm is insufficient to warrant a preliminary injunction. The Single Justice of the Appeals Court had held that mandating a COVID-19 vaccine as a condition of employment constituted a "genuinely extraordinary situation" that implicated issues of "bodily integrity and self-determination," and therefore involved more than purely economic damages. The SJC disagreed, and held that the harm the plaintiffs would be facing—loss of employment—was purely economic, and thus the plaintiffs would not suffer irreparable harm without injunctive relief.
Finally, the SJC held that granting a preliminary injunction would not be in the public interest, and the potential harm to the public clearly outweighed the economic harm to the plaintiffs. The Court acknowledged the danger to public safety posed by the Omicron variant. Moreover, it noted that the vaccination requirement protected the health of city residents who would come into contact with the plaintiffs as well as the City's ability to maintain a healthy workforce, which was required to continue providing public safety services like policing and firefighting. The SJC ultimately concluded that awarding injunctive relief did not promote the public interest, and the potential harm to Boston and the public from COVID-19 "clearly outweighed the economic harm to the employees."
Takeaways
This decision is good news for employers. Although the SJC reached its conclusion in part because of the acute public health crisis posed by the Omicron variant and the public-facing and urgent nature of the plaintiff employees' roles, a key takeaway is that in certain circumstances, some employers may be permitted to act unilaterally on issues that would normally be subject to collective bargaining. This decision also reinforces that termination of employment leads to purely economic harm, even in the context of vaccine mandates, making preliminary injunctions inappropriate.
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