Boston’s City Worker Vaccine Mandate Tests Power of Unions

The power of unions to bargain over workplace health measures is at stake as the Massachusetts high court decides whether to allow a Covid-19 vaccine mandate for city workers to proceed.

If the city of Boston is allowed to compel vaccination, it could be a sea change for the kinds of decisions public employers can make without first bargaining with unions. Courts in the state have typically determined that public employers must bargain over matters of worker health and safety before implementing any decisions.

A decision in the city’s favor “could water down the union’s ability to have a say over its members’ terms and conditions of employment before such policies are implemented,” said Dennis Coyne, an attorney who represents unions at McDonald Lamond Canzoneri.

Other scholars in labor and health law say the scope of the decision will be tailored to the narrow circumstances of the pandemic.

Still, the case could be used as precedent for public employers to require treatments beyond vaccination. “If they can compel a vaccine with a minimal obligation, I don’t see why they couldn’t compel a seasonal flu pill,” Coyne said.

The Massachusetts Supreme Judicial Court will hear oral arguments on Friday to decide whether a lower court was right to stop Boston Mayor Michelle Wu from enforcing a vaccine mandate on unionized firefighters, police officers, and detectives. The unions brought the case against the city for replacing a vaccine-or-test mandate with a strict vaccine mandate without bargaining over the policy.

The court’s decision could be the highest level ruling on this issue coming out of any state, and it could influence pending cases across the country, Coyne said.

City vs. Union

States have police powers that allow them to mandate vaccination for their citizens due to precedent set in the 1905 Supreme Court case, Jacobson v. Massachusetts.

This case asks the courts to weigh in on whether those police powers apply to the city of Boston when it is acting as an employer negotiating with a union.

Any public law “supersedes, in my judgment, the collective bargaining agreement,” said William Gould, a professor emeritus at Stanford Law School and former chairman of the National Labor Relations Board.

The city claims its vaccine mandate isn’t subject to bargaining obligations because vaccination “is critical to the City’s core mission of providing vital emergency services to its residents,” the unions wrote in a brief.

But by waiting to mandate the vaccine until December 2021, the city demonstrated that “vaccination of employees, while undeniably providing benefits, is neither critical nor necessary to provide municipal services,” the unions said.

“The City has a non-delegable, core managerial perogative to require that employees be vaccinated,” the city wrote in its brief.

‘Vector for Vaccine Policies’

The case pits a state’s public health interest against “a growing uneasiness with using employment as a vector for vaccine policies,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

That uneasiness made its way up to the US Supreme Court earlier in the pandemic, with the justices ruling that the Occupational Safety and Health Administration can’t force large private employers to mandate a vaccine-or-test policy.

But there is still “no problem with employers setting rules for employees including vaccination rules,” as long as they make necessary medical and religious accommodations, said Sharona Hoffman, a professor at the Case Western Reserve University School of Law.

The Boston mandate allows for medical and religious exemptions.

“The ramifications of a ruling that vaccine mandates are outside the scope of bargaining would be intellectually dishonest and potentially ruinous, the unions wrote. “Under this logic, a public employer could require that its employees consume Ivermectin daily or be prohibited from off-duty socializing,” they said.

Gould said he doesn’t see this case “as undermining union power” because “the pandemic is an unusual occurrence.”

Weighing Risks

Boston announced its initial vaccine-or-test policy Aug. 12, 2021. The city negotiated with the unions and reached several memoranda of agreement.

When the city revised its policy to a strict vaccination mandate Dec. 20, 2021, it violated those agreements, the unions said in their brief.

Appeals Court Associate Justice Sabita Singh blocked enforcement of the mandate Feb. 15, 2022. She found that the risk the mandate posed to both the workers and the unions was greater than the risk of Boston’s inability to force 450 employees to be vaccinated.

“On one hand, I think the firefighter’s union has a very strong logical argument that without the injunction, they are either going to be forced into a medical procedure they don’t want or effectively lose their jobs,” Shachar said. On the other hand, the city “has a police power to ensure the public health and safety of everybody, and vaccination is necessary for that,” she said.

The state has a strong public health interest in making sure groups like police officers and firefighters are vaccinated, and those groups tend to be highly unionized, Shachar said. “It will be interesting to see how the court strikes the balance.”

The case is Boston Firefighters Union Local 718 v. City of Boston, Mass., No. SJC-13347, oral argument 1/6/23.