Boston Firefighters Union, Local 718, International Association of Fire Fighters, AFL-CIO v. City of Boston

NOTICE: All slip opinions and orders are subject to formal

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SJC-13347

BOSTON FIREFIGHTERS UNION, LOCAL 718, INTERNATIONAL ASSOCIATION

OF FIRE FIGHTERS, AFL-CIO, & others1 vs. CITY OF BOSTON

& another.2

Suffolk. January 6, 2023. - March 30, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,

& Georges, JJ.

Injunction. Practice, Civil, Preliminary injunction, Injunctive

relief. Labor, Collective bargaining, Public employment,

Police, Fire fighters. Municipal Corporations, Collective

bargaining, Mayor, Police, Fire department. Public

Employment, Collective bargaining.

Civil action commenced in the Superior Court Department on

January 3, 2022.

A motion for a preliminary injunction was heard by Jeffrey

A. Locke, J.

A proceeding for interlocutory review was heard in the

Appeals Court by Sabita Singh, J. The Supreme Judicial Court on

its own initiative transferred the case from the Appeals Court.

John Foskett for the defendants.

1 Boston Police Superior Officers Federation and Boston

Police Detectives Benevolent Society.

2 Mayor of Boston.

2

Patrick N. Bryant for Boston Police Superior Officers

Federation.

Leah M. Barrault for Boston Firefighters Union, Local 718,

International Association of Fire Fighters, AFL-CIO.

Scott W. Dunlap, for Boston Police Detectives Benevolent

Society, was present but did not argue.

The following submitted briefs for amici curiae:

Larry H. James, of Ohio, & Joseph G. Donnellan for National

Fraternal Order of Police.

John M. Becker & Ian M. Collins for Massachusetts Coalition

of Police.

Matthew D. Watts for International Association of Fire

Fighters.

CYPHER, J. The plaintiffs, the Boston Firefighters Union,

Local 718, International Association of Fire Fighters, AFL-CIO

(Local 718); the Boston Police Detectives Benevolent Society

(BPDBS); and the Boston Police Superior Officers Federation

(federation), filed a verified complaint in the Superior Court,

challenging the defendants' unilateral amendment of the COVID-19

vaccination policy for all city of Boston (city) employees. In

the complaint, the plaintiffs sought declaratory and injunctive

relief for the defendants' alleged violations of both the prior

memoranda of agreement between the parties, and the defendants'

collective bargaining obligations as public employers, pursuant

to G. L. c. 150E. The plaintiffs' motion for injunctive relief

was denied by a judge of the Superior Court. The plaintiffs

appealed, pursuant to G. L. c. 231, § 118, to a single justice

of the Appeals Court, who reversed the judge's denial of the

plaintiffs' motion for a preliminary injunction and ordered the

3

entry of a preliminary injunction restraining the defendants

from enforcing their December 2021 amended COVID-19 vaccination

policy. The defendants appealed from the order of the single

justice to this court. This case now presents the question

whether the single justice of the Appeals Court abused her

discretion in reversing the denial of the plaintiffs' motion for

a preliminary injunction. For the reasons stated below, we

conclude that the single justice abused her discretion in

enjoining the defendants from enforcing their December 2021

amended COVID-19 vaccination policy, and we reverse the order of

the single justice of the Appeals Court and vacate the

injunction.3

Background. Each of the three plaintiffs is an employee

organization within the meaning of G. L. c. 150E, § 1, serving

as the exclusive bargaining representative for various police

officers and firefighters employed by the defendants, the city

and Michelle Wu, in her official capacity as mayor of the city.4

The federation is the exclusive bargaining representative of 250

sworn sergeants, lieutenants, and captains of the Boston police

3 We acknowledge the amicus briefs submitted by the National

Fraternal Order of Police, the Massachusetts Coalition of

Police, and the International Association of Fire Fighters in

support of the plaintiffs.

4 The defendants are public employers within the meaning of

G. L. c. 150E, § 1.

4

department (BPD). BPDBS serves as the exclusive bargaining

representative of all BPD patrol detectives, detective

superiors, and those assigned to the forensic unit within BPD.

Local 718 is the exclusive bargaining representative for all

uniformed employees of the city's fire department.

On March 10, 2020, the Governor declared a state of

emergency in response to the spread of COVID-19. Christie v.

Commonwealth, 484 Mass. 397, 398 (2020). The next day, COVID-19

was declared a global pandemic by the World Health Organization

(WHO). Id. at 398-399. To date, according to the WHO, COVID-19

remains a pandemic, and continues to be "a dangerous infectious

disease with the capacity to cause substantial damage to health

and health systems." See World Health Organization, Statement

on the fourteenth meeting of the International Health

Regulations (2005) Emergency Committee regarding the coronavirus

disease (COVID-19) pandemic (Jan. 30, 2023), https://www.who.int

/news/item/30-01-2023-statement-on-the-fourteenth-meeting-of-

the-international-health-regulations-(2005)-emergency-committee-

regarding-the-coronavirus-disease-(covid-19)-pandemic

[https://perma.cc/3YL8-8FAN]. Vaccination against COVID-19,

however, has served as an important tool in achieving higher

levels of immunity among the population as the pandemic

continues, see id., because individuals who are vaccinated

5

against COVID-19 are significantly less likely to develop

serious health complications from COVID-19.

On August 12, 2021, in an effort to combat the spread of

COVID-19, the defendants announced the "Vaccine Verification or

Required Testing for COVID-19 Policy" (COVID-19 policy),

generally requiring all city employees either to verify they are

vaccinated against COVID-19, or, alternatively, to submit proof

of a negative COVID-19 test every seven days. The city executed

a memorandum of agreement (MOA) with both the federation and

Local 718 memorializing this policy.5

Throughout the lifespan of the pandemic, however, COVID-19

has continued to evolve genetically, giving rise to numerous

variants of concern. Among the COVID-19 variants of concern was

the Omicron variant during the fall and winter of 2021.

According to Dr. Bisola Ojikutu, the executive director of the

city's public health commission, the Omicron variant likely was

to spread so significantly and rapidly that the continued

practice of allowing employees to go through weekly testing, as

an alternative to vaccination, was insufficient to combat the

spread of COVID-19.

5 At the time of the MOA with the federation and Local 718,

the city also was involved in negotiations with BPDBS.

6

Thus, on December 20, 2021, Mayor Wu unilaterally amended

the COVID-19 policy for the city's employees, to mandate that

all city employees be vaccinated against COVID-19 as a condition

of employment (amended COVID-19 policy).6 The failure to verify

one's vaccination status resulted in discipline for city

employees, beginning with unpaid leave from employment, and

ultimately progressing to termination for those employees who

refused to comply with the new amended COVID-19 policy. The

amended policy required unvaccinated city employees to verify

that they had received at least one dose of the COVID-19 vaccine

by January 15, 2022, and verify full vaccination status by

February 15, 2022.7

Each plaintiff objected to the defendants' unilateral

amendment of the COVID-19 policy. Local 718 contacted Mayor Wu,

asking her to consider a continuation of the in-station testing

program under the previous COVID-19 policy; its efforts were

unsuccessful. The federation demanded the defendants adhere to

the existing MOA and met with the defendants to discuss the

defendants' bargaining obligations related to the vaccination

6 The defendants notified the plaintiffs of the policy

change in the days prior to December 20, 2021, when Mayor Wu

unilaterally amended the policy.

7 The defendants extended the effective date of the policy

by two weeks.

7

policy. Finally, BPDBS requested that the defendants refrain

both from implementing the amended COVID-19 policy and from

making further unilateral changes to the COVID-19 policy.

When Mayor Wu declined to acquiesce to the plaintiffs'

requests, after the unilateral implementation of the amended

COVID-19 policy, the plaintiffs filed prohibited practice

charges with the Department of Labor Relations, alleging that

the defendants violated G. L. c. 150E, § 10 (a) (1), (5).8 The

federation also filed a grievance, alleging that the amended

vaccination policy violated the MOA with the city. Most

importantly for the purposes of this appeal, the plaintiffs also

filed a verified complaint in the Superior Court seeking both

declaratory and injunctive relief as a result of the defendants'

unilateral amendment of the COVID-19 policy. The plaintiffs

alleged that the defendants' actions repudiated the MOAs and

8 All but one of the allegations in these charges were

dismissed by a Department of Labor Relations investigator. See

City of Boston & Boston Police Superior Officers Fed'n,

Commonwealth Employment Relations Bd. (CERB), Nos. MUP-21-9008,

MUP-22-9238, at 1 & n.1 (Dec. 29, 2022). The plaintiffs timely

requested review of the dismissals by CERB. Id. at 1 n.1, 2.

CERB recently affirmed the dismissal of the repudiation and

decision bargaining allegations but remanded the matters on a

limited issue concerning the defendants' alleged violation of

their impact bargaining obligations. See id. See also City of

Boston & Boston Police Detective Benevolent Soc'y, CERB, No.

MUP-21-9004, at 2 (Dec. 29, 2022); City of Boston & Boston

Firefighters, IAFF Local 718, CERB, Nos. MUP-21-9002, MUP-22-

9310, at 2 (Dec. 29, 2022).

8

violated the bargaining obligations of G. L. c. 150E.9 Following

a hearing on the plaintiffs' motion for a preliminary

injunction, the judge denied their request for injunctive

relief. The plaintiffs filed a petition pursuant to G. L.

c. 231, § 118, for a single justice of the Appeals Court to

review the denial of their motion for a preliminary injunction.

In her decision, the single justice reversed the denial of

the plaintiffs' motion for a preliminary injunction and enjoined

the defendants from implementing the amended COVID-19 policy,

pending a final resolution of the matter. The single justice

held that the defendants' failure to bargain on the decision to

implement the amended COVID-19 policy, prior to its

implementation, was sufficient for the plaintiffs to have

demonstrated a likelihood of success on the merits of the case.

9 The parties dispute whether the defendants fulfilled their

bargaining obligations after the announcement of the amended

COVID-19 policy. The defendants met separately with the

plaintiffs' bargaining teams on January 5, 6, and 7, 2022,

before the Department of Labor Relations mediation hearing that

was scheduled on January 11, 2022, for the plaintiffs'

prohibited practice charges. The plaintiffs take issue with the

fact that this was more than three weeks after the amended

COVID-19 policy was announced, and only one week before the

initial deadline for employees to comply with the amended COVID-

19 policy's first dose requirement. At the hearing for a

preliminary injunction, the plaintiffs reported that the city

only agreed to one hour of mediation at the January 11 mediation

session and sent a representative with no decision-making

authority.

9

Moreover, the single justice disagreed with the motion judge

that the plaintiffs failed to demonstrate irreparable harm.

The single justice recognized that potential termination

from employment generally does not satisfy the element of

irreparable harm. See Sampson v. Murray, 415 U.S. 61, 91-92

(1974). See also Hull Mun. Lighting Plant v. Massachusetts Mun.

Wholesale Elec. Co., 399 Mass. 640, 643 (1987) (economic loss

alone generally insufficient for irreparable harm). However,

where the plaintiffs alleged that the COVID-19 vaccine involved

issues of bodily integrity and self-determination, the single

justice held that this case was distinguishable from the more

common case where an employee seeks to enjoin termination from

employment. Furthermore, where there were only 450 remaining

unvaccinated union members, who could continue to be tested

regularly under the existing policy, the enjoinment of the

amended COVID-19 policy still would provide the defendants with

the ability to effect public health measures to minimize the

spread of COVID-19. Thus, the single justice held that the

balance of harms favored the plaintiffs.10

10The order enjoins the defendants from enacting their

amended COVID-19 policy only as to employees represented by the

plaintiff unions. However, the defendants have represented to

this court that the policy has been suspended for all city

employees pending the final resolution of this matter.

10

The defendants appealed from the order of the single

justice, and we transferred the case to this court sua sponte.

Discussion. 1. Standard of review. Where a single

justice of the Appeals Court reverses the decision of a motion

judge, and issues a preliminary injunction following a petition

pursuant to G. L. c. 231, § 118, we review the single justice's

decision to issue the injunction for an abuse of discretion, as

if it were an identical order by the motion judge considering

the matter in the first instance.11 See Aspinall v. Philip

Morris Cos., 442 Mass. 381, 389-390 (2004), citing Jet-Line

Servs., Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645,

646 (1988). See also King v. Shank, 92 Mass. App. Ct. 837, 839

n.3, S.C., 480 Mass. 7 (2018) (reviewing single justice's order

11In her order, the single justice stated that her review

of the motion judge's denial of the motion for injunctive relief

was for an abuse of discretion. Her order does not reflect

review for an abuse of discretion; instead, the single justice's

decision more closely reflects de novo review. The single

justice had the right to review the denial of the preliminary

injunction de novo, as she could review the same factors as the

motion judge, see Lieber v. President & Fellows of Harvard

College (No. 2), 488 Mass. 816, 821 (2022), and draw her own

conclusions from the record, where the motion judge's order "was

predicated solely on documentary evidence," Packaging Indus.

Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980). See Manfrates

v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412

n.4 (1996) (single justice may review order concerning

preliminary injunction de novo). Whether the single justice

reviewed the motion judge's denial of injunctive relief for an

abuse of discretion, or de novo, does not alter our holding

because, for the reasons discussed infra, the issuance of the

preliminary injunction was erroneous.

11

to issue preliminary injunction "in the same manner as if it

were an identical order by the trial judge considering the

matter in the first instance). Cf. Fordyce v. Hanover, 457

Mass. 248, 256 (2010) (where single justice vacates motion

judge's decision to issue preliminary injunction, pursuant to

G. L. c. 231, § 118, appellate court reviews for whether motion

judge abused discretion in issuing preliminary injunction). In

making this determination, "we decide 'whether the judge applied

proper legal standards and whether there was reasonable support

for his [or her] evaluation of factual questions.'" Id.,

quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741

(2008). Any such conclusions of law, however, "are subject to

broad review and will be reversed if incorrect." Fordyce,

supra, quoting Packaging Indus. Group, Inc. v. Cheney, 380 Mass.

609, 616 (1980).

"[A] party seeking a preliminary injunction must show '(1)

a likelihood of success on the merits; (2) that irreparable harm

will result from denial of the injunction; and (3) that, in

light of the [moving party's] likelihood of success on the

merits, the risk of irreparable harm to the [moving party]

outweighs the potential harm to the [nonmoving party] in

granting the injunction.'" Garcia v. Department of Hous. &

Community Dev., 480 Mass. 736, 747 (2018), quoting Loyal Order

of Moose, Inc., Yarmouth Lodge # 2270 v. Board of Health of

12

Yarmouth, 439 Mass. 597, 601 (2003). "Where a party seeks to

enjoin government action, the judge also must determine that the

requested order promotes the public interest, or, alternatively,

that the equitable relief will not adversely affect the public."

Foster v. Commissioner of Correction, 488 Mass. 643, 650 (2021),

quoting Garcia, supra.

2. Decision bargaining. The city and the mayor argue that

the single justice abused her discretion in holding that the

plaintiffs had established a likelihood of success on the merits

of their claim, i.e., that the amended COVID-19 policy violated

the defendants' mandatory decision bargaining obligations and

prior MOAs between the parties. We agree.

"Pursuant to G. L. c. 150E, § 6, public employers must

negotiate in good faith with respect to wages, hours, standards

or productivity and performance, and any other terms and

conditions of employment" (quotation omitted). Worcester v.

Labor Relations Comm'n, 438 Mass. 177, 180 (2002). The single

justice held that the plaintiffs' claim revolves around the

city's duty to bargain over the vaccine mandate policy. Where

it failed to bargain over the decision to amend the COVID-19

policy to eliminate the testing alternative to vaccination and

require vaccination against COVID-19 as a condition of

employment, the single justice held that the plaintiffs have

established a strong likelihood of success on their essential

13

claim, i.e., that the defendants likely violated both their

decision and impact bargaining obligations under G. L. c. 150E,

as well as the MOAs with Local 718 and the federation.

Contrary to the decision of the single justice, the

defendants need not have bargained over the decision to amend

the COVID-19 policy to remove COVID-19 testing as an alternative

to vaccination. Certain managerial decisions are exempted from

collective bargaining obligations where such decisions, as a

matter of public policy, must be reserved to the public

employer's discretion. Worcester, 438 Mass. at 180. "The

crucial factor in determining whether a given issue is a

mandatory subject of bargaining is whether resolution of the

issue at the bargaining table is deemed to conflict with

perceived requirements of public policy" (alteration and

citation omitted). Id. at 181. Such inquiry aims to define

"the boundary between subjects that by statute, by tradition, or

by common sense must be reserved to the sole discretion of the

public employer so as to preserve the intended role of the

governmental agency and its accountability in the political

process." Id., quoting Lynn v. Labor Relations Comm'n, 43 Mass.

App. Ct. 172, 178 (1997). See Local 346, Int'l Bhd. of Police

Officers v. Labor Relations Comm'n, 391 Mass. 429, 437 (1984)

("in instances where a negotiation requirement would unduly

impinge on a public employer's freedom to perform its public

14

functions, G. L. c. 150E, § 6, does not mandate bargaining over

a decision directly affecting the employment relationship").

In December 2021, as the Omicron variant ran rampant

throughout the Commonwealth, vaccination against COVID-19 was

viewed as the only effective means by which the city and the

mayor could combat the virus while still performing their public

functions. According to the executive director of the city's

public health commission, the continued practice of testing as

an alternative to vaccination against COVID-19 would be

insufficient to contain the spread of COVID-19 following the

emergence of the Omicron variant. The defendants' policy

decision to amend the COVID-19 policy was based on 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.

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. See Boston v. Boston Police Superior Officers Fed'n,

29 Mass. App. Ct. 907, 908 (1990) (certain core managerial

15

decisions, affecting city's ability to provide essential safety

services, exceed bounds of mandatory bargaining because "[t]he

demands of public safety and a disciplined police force

underscore the importance of management control over matters

such as staffing levels, assignments, uniforms, weapons, and

definition of duties" [citation omitted]). See also Local 346,

Int'l Bhd. of Police Officers, 391 Mass. at 439-440 (police

chief may require officers suspected of criminal conduct to take

polygraph examination without mandatory bargaining because

integrity and credibility of police departments is indispensable

to effective public law enforcement); Framingham v. Framingham

Police Officers Union, 93 Mass. App. Ct. 537, 543 (2018) (police

chief's authority to assign officers to particular duties

concerns public safety and constitutes policy judgment in

allocation and deployment of law enforcement resources); Saugus

v. Saugus Police Superior Officers Union, 64 Mass. App. Ct. 916,

916-917 (2005) (police chief's involuntary assignment of

officers to overtime shifts, which were required for public

safety, was within his core managerial prerogatives and was not

subject to mandatory bargaining).

Whether there were possible alternatives to the amended

COVID-19 policy that could have allowed the defendants to

maintain the ability to provide these essential safety services

to city residents without going so far as mandating vaccination

16

against COVID-19 for all city employees, such as continued

testing for COVID-19 for unvaccinated employees, is not the

issue when identifying core managerial prerogatives. See

Worcester, 438 Mass. at 183 ("A public employer need not defend

the wisdom of a policy choice that it has made in order to have

that choice recognized as a core managerial prerogative. It is

the fact that the public employer's choice is one of policy, not

the merits of the choice the employer makes, that renders the

choice an inappropriate subject of mandatory bargaining").

Where the decision to remove weekly testing as an alternative to

vaccination against COVID-19 constituted a core managerial

prerogative, we hold that the plaintiffs failed to demonstrate a

likelihood of success on the merits of their claim that the

defendants have violated their decision bargaining obligations

under G. L. c. 150E.

Notwithstanding the defendants' bargaining obligations

under G. L. c. 150E, the plaintiffs alleged that the defendants'

unilateral decision to remove the testing alternative to

vaccination against COVID-19 repudiated the MOAs between the

parties.12 In arguing that the defendants have repudiated the

MOAs, the plaintiffs point to paragraph seven of the MOA with

12Only two of the unions, Local 718 and the federation,

actually entered into an MOA with the defendants to memorialize

the COVID-19 policy.

17

Local 718, where the defendants stated their intent "to

periodically review the Policy" and agreed to "fulfill any

impact bargaining obligations associated with any proposed

substantive changes" (emphasis added). The plaintiffs also

alleged that the defendants violated paragraph four of the MOA

with the federation, where the defendants agreed that nothing in

the MOA concerning the COVID-19 policy shall "demonstrate a

practice or create a precedent for any other matter" or diminish

any of the parties' other collective bargaining rights.

Neither paragraph in the MOAs contains express language

demonstrating an agreement between the parties as to mandatory

collective bargaining on any potential future decision to

require mandatory vaccination against COVID-19. Furthermore,

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 as the defendants are "not free to bargain away

certain elements of [their] nondelegable authority and

responsibility to act for the public health, safety, and

welfare," because "the public interest . . . impose[s] a

necessary limitation upon the collective bargaining process."

Chief Justice for Admin. & Mgt. of the Trial Court v.

Commonwealth Employment Relations Bd., 79 Mass. App. Ct. 374,

381 (2011). Thus, we hold that the plaintiffs have failed to

18

demonstrate a likelihood of success on the merits of their claim

that the defendants have repudiated the MOAs, insofar as the

MOAs require mandatory collective bargaining on any decision to

eliminate the testing alternative in the amended COVID-19

policy.

3. Impact bargaining. Even where an employer's decision

is not the subject of mandatory collective bargaining, if any

such decision by the employer "has [an] impact upon or affects a

mandatory topic of bargaining, negotiation over the impact is

[still] required" (citation omitted). Worcester, 438 Mass. at

185. In seeking injunctive relief from the implementation of

the amended COVID-19 policy, the plaintiffs alleged that they

have demonstrated a likelihood of success on the merits of the

defendants' alleged violations of their impact bargaining

obligations under both the MOAs and G. L. c. 150E.13

Exigent 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 of such change thereafter.14 See

Paragraph seven of the MOA between the defendants and

13

Local 718 states: "The City . . . shall fulfill any impact

bargaining obligations associated with any proposed substantive

changes."

The parties agree that an exigency defense exists for an

14

employer with respect to impact bargaining obligations. We note

19

City of Boston & Boston Police Superior Officers Fed'n,

Commonwealth Employment Relations Board (CERB), Nos. MUP-21-

9008, MUP-22-9238, at 14 (Dec. 29, 2022). An employer relying

on an exigency defense for impact bargaining has the burden of

establishing that (1) circumstances beyond the employer's

control require the imposition of a deadline for negotiations;

(2) the bargaining representative of the union was notified of

these circumstances and the employer's deadline; and (3) the

deadline was reasonable and necessary. Id. See Secretary of

Admin. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass.

App. Ct. 91, 98 (2009) ("If the Commonwealth had agreed to

bargain and no resolution or impasse was in sight as the

implementation deadline approached, under longstanding

commission precedent, the Commonwealth could have imposed a

reasonable negotiation deadline, implemented the withholding,

and continued post-implementation bargaining without running

afoul of its obligations under G. L. c. 150E").

that CERB precedent has acknowledged such a defense, and while

we discern no published appellate court case of this

Commonwealth directly on point on the issue, the parties rely on

this CERB precedent in their briefs. See City of New Bedford,

38 M.L.C. 239, 251 (2012). This precedent also has been relied

on by the Appeals Court, albeit in an unpublished decision. See

New Bedford v. Commonwealth Employment Relations Bd., 90 Mass.

App. Ct. 1103 (2016). We owe deference to the special expertise

of CERB in this area of law. See Somerville v. Commonwealth

Employment Relations Bd., 470 Mass. 563, 567-568 (2015).

20

Here, according to Dr. Ojikutu, the emergence of the

Omicron variant presented a circumstance outside of the

defendants' control, which threatened the defendants' ability to

continue to provide essential public safety services to city

residents. Testing, as an alternative to mandatory vaccination

for city employees, was no longer considered to be a viable

alternative by medical officials like Dr. Ojikutu. In light of

the evolving circumstances with the Omicron variant, and the

belief that testing was no longer a viable alternative to

vaccination against COVID-19, the defendants notified the

plaintiffs of their intent to amend the COVID-19 policy,

mandating vaccination against COVID-19 for all city employees.

Per the amended COVID-19 policy, all city employees were

required to have at least one dose of the COVID-19 vaccine by

January 15, 2022, and verify full vaccination status by February

15, 2022. This deadline initially was extended by two weeks,

and the defendants suspended the implementation of the policy

pending the resolution of this matter. See note 10, supra.

The plaintiffs argue that where the deadline for mandatory

vaccination was pushed back multiple times, the implementation

of the amended COVID-19 policy was stayed pending resolution of

this matter, and the city permitted thousands of other

unvaccinated employees to continue to provide services to its

residents, no such exigent circumstances existed to relieve the

21

defendants of their impact bargaining obligations. Because the

Omicron variant of COVID-19 was thought to spread significantly

and rapidly throughout the city's workforce, however, the

defendants' claim, that the exigency of the COVID-19 pandemic

necessitated the swift removal of the testing alternative to

mandatory vaccination against COVID-19, was reasonable given the

expert opinions of medical officials such as Dr. Ojikutu.

Whether the initial, approximate three-week deadline

imposed by the defendants was a reasonable and necessary

deadline in light of the emergence of the Omicron variant is

less clear. The record is devoid of sufficient facts to

determine this fact-intensive issue, one that has already been

presented to CERB. See City of Boston & Boston Police Superior

Officers Fed'n, CERB, Nos. MUP-21-9008, MUP-22-9238, at 14-15.

While CERB has yet to denounce the approximate three-week

deadline as an unreasonable deadline, it did acknowledge that

the defendants' deadline was less than one-half of a comparable

two-month deadline imposed by the Commonwealth in nearly

identical circumstances, in a dispute over mandatory vaccination

against COVID-19 between the Commonwealth and the State Police

Association of Massachusetts. Id.

Whether the deadline for compliance with the defendants'

amended COVID-19 policy in fact was reasonable and necessary is

still the subject of a pending matter before an investigator of

22

the Department of Labor Relations, following a remand by CERB.

Id. at 14-15 & n.10. Nonetheless, given CERB's acknowledgement

that the defendants' initial deadline more than halved that of

another employer in similar circumstances, we conclude that the

plaintiffs have demonstrated at least some likelihood of success

on the merits of their impact bargaining claim.

4. Irreparable harm and the harm to the public. Assuming

that the plaintiffs have demonstrated a likelihood of success on

the merits of their impact bargaining claim, i.e., that the

initial deadline for implementation of the amended COVID-19

policy in fact was neither a reasonable nor a necessary deadline

in the circumstances, the plaintiffs still were required to

demonstrate irreparable harm from the failure to enjoin the

implementation of the amended COVID-19 policy. See Garcia, 480

Mass. at 747.

The motion judge and single justice disagreed on whether

the plaintiffs had demonstrated irreparable harm. The motion

judge held that, where the failure to grant the injunction would

result in solely economic harm in the form of adverse employment

consequences including suspension without pay and eventual

termination, the plaintiffs have not demonstrated irreparable

harm. See Sampson, 415 U.S. at 92 n.68 (generally termination

from employment falls short of irreparable harm). See also Hull

Mun. Lighting Plant, 399 Mass. at 643 (economic damages alone

23

insufficient for irreparable harm). The single justice,

however, held that while potential termination from employment

ordinarily does not give rise to irreparable harm, the

circumstances of the COVID-19 pandemic and the mandate of

vaccination against COVID-19 as a condition of employment

constituted a "genuinely extraordinary situation," implicating

issues of "bodily integrity and self-determination." Thus,

according to the single justice, the plaintiffs sufficiently had

demonstrated irreparable harm warranting injunctive relief.

While 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, we conclude

that the motion judge, and not the single justice, was correct:

the harm to the plaintiffs -- the loss of employment -- is still

economic, see Hull Mun. Lighting Plant, 399 Mass. at 643, as

they could have continued to refuse to become vaccinated and

instead challenged the decision both in court and before CERB,

see Commonwealth v. Mass. CRINC, 392 Mass. 79, 87 (1984)

(irreparable harm must rise to level such that no adequate

remedy at law exists). See also G. L. c. 150E, § 11 (d) (where

employer commits prohibited practice under public employee

collective bargaining agreement, discharged employee shall be

reinstated with potential for back pay); Pittsfield v. Local 447

Int'l Bhd. of Police Officers, 480 Mass. 634, 644 (2018)

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(officers wrongfully terminated have possibility of

reinstatement and can be made whole through back pay and

compensation for lost income from overtime, lost benefits under

collective bargaining agreement, etc.).

We must also consider the potential harm to the city and

the public in granting an injunction. Garcia, 480 Mass. at 747.

The risk of irreparable harm to the plaintiffs must outweigh

this potential harm to the city and the public. Id. Where the

plaintiffs seek to enjoin government action, the award of a

preliminary injunction must "promote[] the public interest, or,

alternatively, . . . [must] not adversely affect the public"

(citation omitted). Id.

As explained by Dr. Ojikutu, health officials at the time

had a scientific basis to believe that continuing to allow

testing as an alternative to vaccination against COVID-19 likely

was insufficient to combat the surge of the Omicron variant in

December 2021. Dr. Ojikutu opined that requiring vaccination

against COVID-19 instead of the testing alternative would reduce

the likelihood of the spread of COVID-19 to those city residents

who need emergency public safety services. In doing so,

vaccination against COVID-19 not only protected the health of

city residents, but also protected the defendants' ability to

continue to maintain a sufficiently healthy workforce during the

Omicron surge, as would be needed to deliver emergency public

25

safety services to the residents of the city. Therefore, where

awarding injunctive relief does not promote the public interest,

the single justice abused her discretion in issuing the

preliminary injunction because the potential harm to the city

and the public resulting from the spread of COVID-19 clearly

outweighed the economic harm to the employees. See LeClair v.

Norwell, 430 Mass. 328, 337-339 (1999) (where enjoining

important school construction project would harm public

interest, no error in failure to award preliminary injunction

despite plaintiffs' meritorious allegations that town violated

public construction statute and town bylaw).

Conclusion. Accordingly, we reverse the order of the

single justice of the Appeals Court, and we vacate the

preliminary injunction enjoining the defendants from enacting

the amended COVID-19 policy.

So ordered.