Judge: Troopers Fired Over Vaccine Mandate to be Reinstated with Back Pay if State Found Guilty of Unfair Labor Practices

A judge on Thursday denied a request by the union that represents Massachusetts State Police troopers to delay Governor Charlie Baker’s vaccine mandate. However, she noted if the state is found to have violated its bargaining obligations, any trooper fired over the policy would have to be reinstated.

“We are disappointed in the judge’s ruling; however, we respect her decision,” State Police Association of Massachusetts President Michael Cherven said in a statement. “It is unfortunate that the Governor and his team have chosen to mandate one of the most stringent vaccine mandates in the country with no reasonable alternatives.”

Last month, the Governor issued an executive order requiring all 42,000 or so Executive branch employees to provide proof of COVID-19 vaccination on or before October 17. Employees who aren’t vaccinated or approved for an exemption by then will be subject to disciplinary action, up to and including termination

The same day, the State Police Association of Massachusetts, which represents roughly 1,800 troopers, sent a demand to bargain the impacts of the order with the state’s chief negotiator, John Langan. On August 23, Langan sent the union a copy of the policy the state’s Human Resources Division had drafted, but not yet finalized, to implement the order.

On August 30, Langan met with union members to discuss their proposed changes to the policy, including:

  • Troopers would be allowed to engage in weekly testing, to be conducted while on-duty at a department facility & mask wearing as an alternative to the vaccination
  • October 17 would be the date for starting rather than completing the vaccination process
  • Any COVID-related illness suffered by a trooper would be deemed a line-of-duty injury, entitling the trooper to benefits

On September 10, the state Human Resources Division sent an email to all Executive branch employees explaining how to verify they received the vaccine and how to seek a medical or religious exemption.

In response to the email, the union’s attorneys reached out to Langan to express concerns the vaccination policy would go into effect without bargaining. Langan said the state intended to comply with its bargaining obligation but noted the union’s proposed changes were “directly at odds” with the purpose of the Governor’s order.

At a September 13 meeting, Langan proposed concessions, including paid time off to get the vaccine and paid leave for vaccinated troopers who are required to quarantine due to COVID-19 exposure. He said the October 17 deadline for full vaccination would not be changed.

On September 16, the union filed a Charge of Prohibited Practice with the Division of Labor Relations, the state agency charged with enforcing the public employee collective bargaining law. The agency docketed the charge on September 20 and is in the process of scheduling a mediation between the state and the union, as well as an investigative conference.

The next day, the union filed a lawsuit in Suffolk Superior Court to put the vaccine mandate on hold until either they struck a deal with the state or the DLR proceedings concluded. A judge heard from attorneys from both sides Wednesday.

Attorneys for the state don’t believe DLR will side with the union. They say the state bargained in good faith and it was the union that prematurely stopped negotiations by filing the charge at DLR.

The state’s attorneys also argue the deadline itself is not a term that must be negotiated. They say the state can still fulfill its obligation to bargain over other terms of the policy by continuing negotiations after the policy takes effect. The judge noted employees can refuse getting vaccinated until the negotiations are completed, but they risk being fired.

“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,” Judge Jackie Cowin wrote in her ruling.

According to the union’s attorney, about 20% of State Police employees aren’t vaccinated. The union noted there’s no evidence unvaccinated troopers in the state have suffered a higher incidence of COVID-19 than vaccinated troopers or the lack of vaccination has impacted the department’s ability to perform its duties.

“Throughout COVID, we have been on the front lines protecting the citizens of Massachusetts and beyond,” Cherven said. “Simply put, all we are asking for are the same basic accommodations that countless other departments have provided to their first responders, and to treat a COVID related illness as a line of duty injury.”

“While the Union 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 State 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 cause to the Union by the denial of such relief ” Cowin wrote.

Another meeting between Langan and the union’s attorneys is scheduled for Tuesday. Live Boston has reached out to the Governor’s office and Massachusetts State Police for comment on the ruling.

“To date, dozens of troopers have already submitted their resignation paperwork, some of whom plan to return to other departments offering reasonable alternatives such as mask wearing and regular testing,” Cherven said.” “The State Police are already critically short staffed and acknowledged this by the unprecedented moves which took troopers from specialty units that investigate homicides, terrorism, computer crimes, arsons, gangs, narcotics, and human trafficking, and returned them to uniformed patrol.”

Live Boston 617 reached out to the Governor and Massachusetts State Police for comment.