COVID vaccine mandate - legal update

Fri, 09/24/2021 - 12:53pm

Memorandum and Order on Plaintiff's Motion for Preliminary Injunction

Dear Brothers and Sisters,

We have received the following letter from our lawyer, Al Gordon:

As you know, we are still at the bargaining table with MassDOT on the COVID mandate and are still arguing to get the arbitrary October 17 deadline pushed off while we try to urge the Department to agree to a testing alternative or some other alternative for those members who choose not to vaccinate.  As you also know, the larger state-wide unions have a head start on their bargaining and thus also have a head start on legal proceedings both at the DLR and in the Courts.
 
The one Union furthest out ahead is the State Police Association of Massachusetts (SPAM), which has already filed charges at the DLR and filed for an injunction in the Superior Court.  I reviewed their filings, spoke with their counsel, and attended the Court hearings on Wednesday morning.  SPAM’s attorney argued the case forcefully and intelligently, but despite his strong efforts, the Court issued its ruling late yesterday (attached) denying SPAM’s request for an injunction.  While the Court didn’t accept the Commonwealth’s argument that the Court lacked jurisdiction, the Court ruled that SPAM failed to show irreparable harm and also that the granting of the injunction would be against the public interest.
 
As a legal matter, in order to get an injunction in any case, the petitioner has to prove three things: (1) that it has a likelihood of success on the merits, (2) that it would suffer an irreparable harm absent an injunction, and (3) that the harm to the petitioner in not getting an injunction outweighs the harm to the  public in granting the injunction.  Here, the Court didn’t bother addressing the first prong (likelihood of success at the DLR) and instead focused on the second and third prongs.  As relates to the second prong — irreparable harm — the Court concluded (as have basically all other courts in other states that have addressed this question) that the only harm is economic and that the harm is therefore not irreparable.  According to the Court’s view, an employee is free to refuse to be vaccinated while negotiations are ongoing and, if that person gets fired, the DLR has the power to order the employee reinstated and paid backpay if the Union is successful at the DLR.  As relates to the third prong — public interest — the Court found that Commonwealth’s interest in protecting public health and safety outweighs the Union’s interest in enforcing its bargaining rights.
 
As a matter of principle, I disagree with the Court’s ruling, but as it is in line with every other court decision I’ve read, I feel confident in asserting that we would be unable to obtain an injunction and that the October 17 deadline is therefore unstoppable at this point.  We will continue to negotiate with the Department, and we will likely file charges with the DLR after our next negotiating session next week, but those proceedings will take many months to complete.  In the intervening time, members who intend to get vaccinated should do so now, members who would assert religious or medical accommodations should apply for those immediately, and members who choose not to vaccinate for other reasons must make their decisions knowing that they may face discipline up to and including termination while the bargaining process and DLR charges continue to play out and that there is no guarantee that we will be successful in overturning the mandate either at the bargaining table or at the DLR.
 

Please let me know if you or your members have any questions at this juncture.