Mass. Corr. S Federated Union v. Baker

• Decision Date: 15 October 2021
• Docket Number: Civil Action NO. 21-11599-TSH
• Citation: 567 F.Supp.3d 315
• Parties: MASSACHUSETTS CORRECTION OFFICERS FEDERATED UNION, Michael Mosher, Zac Gustafson, Denina Dunn and Angela Pucci, Plaintiffs, v. Charles D. BAKER, In his Official Capacity as Governor of the Commonwealth of Massachusetts, and Carol A. Mici, in her Individual Capacity as Commissioner of the Massachusetts Department of Correction, Defendant.
• Court: U.S. District Court — District of Massachusetts

567 F.Supp.3d 315

MASSACHUSETTS CORRECTION OFFICERS FEDERATED UNION, Michael Mosher, Zac Gustafson, Denina Dunn and Angela Pucci, Plaintiffs,

v.Charles D. BAKER, In his Official Capacity as Governor of the Commonwealth of Massachusetts, and Carol A. Mici, in her Individual Capacity as Commissioner of the Massachusetts Department of Correction, Defendant.

Civil Action NO. 21-11599-TSH

United States District Court, D. Massachusetts.

Filed October 15, 2021

Alan J. McDonald, Dennis M. Coyne, Jr., James F. Lamond, McDonald Lamond Canzoneri, Southborough, MA, for Plaintiffs.

Jennifer E. Greaney, Christine Fimognari, Grace Gohlke, Massachusetts Attorney General's Office, Boston, MA, for Defendant.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

HILLMAN, D.J.

Introduction

The Massachusetts Correction Officers Federated Union ("MCOFU") and four individual members of the MCOFU, Michael Mosher, Zac Gustafson, Denina Dunn and Angela Pucci (collectively, "Plaintiffs") have filed this lawsuit against Governor Charles D. Baker and Massachusetts Department of Correction Commissioner Carol A. Mici alleging violations of the Contracts Clause of the United States Constitution (Count I), violations of their Fourteenth Amendment rights in connection with the Commonwealth requiring that employees be fully vaccinated to continue employment (Counts II and III) and that the vaccine requirement is an ultra vires act under the Massachusetts Declaration of Rights (Count IV).¹ Plaintiffs have moved for a preliminary injunction to prevent Defendants from enforcing COVID-19 vaccine requirements, for which the deadline to comply is October 17, 2021. Defendants oppose the motion. The matter was heard on October 14, 2021. For the reasons discussed herein, Plaintiffs’ motion for a preliminary injunction is denied.

Factual Background

COVID-19 and the COVID-19 Vaccine

COVID-19 is an infectious disease caused by the SARS CoV-2 virus. See Madoff Declaration (Docket No. 19) at ¶ 8. It "is infectious, contagious, and can cause serious disease, hospitalization, and death." Id. "The long-term negative consequences of COVID-19 infection, even for those who were vaccinated before infection or have only mild symptoms, are not yet fully understood." Id. at ¶¶ 8. Id.

Currently, however, COVID-19 is a "vaccine preventable disease." Madoff Decl. at ¶10. The U.S. Food and Drug Administration ("FDA") has approved three COVID-19 vaccines for use: Pfizer BioNTech ("Pfizer"), Moderna, and Johnson & Johnson's Janssen ("J&J"). Id. "The FDA reviewed extensive safety data on each of the vaccines prior to authorizing its use and deemed them safe." Id. at ¶16. The Pfizer COVID-19 vaccine has received FDA approval for people aged 18 and over, and has been authorized by the FDA for people aged 12 to 17. Id. at ¶13. The Moderna and J&J COVID-19 vaccines have been authorized by the FDA for people aged 18 and over. Id. Doses of these vaccines have been administered to billions of people globally and "extensive systems are in place to monitor their safety on an ongoing basis." Id. All three vaccines are widely available in the Commonwealth. Id. at ¶ 14.

COVID-19 continues to spread, primarily in unvaccinated populations. Madoff Decl. at ¶ 17. While no vaccine is 100% effective, "[u]unvaccinated individuals are at much higher risk of infection, and therefore at much higher risk of transmitting COVID-19 to their contacts both in their homes and communities and in the occupational setting. In a recent CDC report, unvaccinated people were 11 times more likely to die of COVID-19 and 10 times more likely to be hospitalized, than those who were fully vaccinated.² Vaccination

benefits not only the person receiving the vaccine, but also others in that person's community, because a high population level vaccination rate reduces the likelihood of community spread of the virus, including breakthrough" infections. Id. at ¶ 20. Additionally, an increased vaccination rate in the overall population reduces the opportunity for new variants of SARS CoV-2 to emerge. Id. at ¶ 21. The importance of limiting opportunities for new variants to develop and thrive is illustrated by the Delta variant, which is far more infectious than the original strain of SARS CoV-2 and has now become the dominant strain of the virus in Massachusetts and nationally. Id.

Although people who have been infected with SARS CoV-2 may have some protective immunity to reinfection, the level of that protection is highly variable from person-to-person, while "the level of immunity derived from vaccination

against COVID-19 is reliably high and well validated in numerous studies." Madoff Decl. at ¶ 22. Vaccinated people are less likely to be reinfected with the virus. Id. at ¶23.

Executive Order No. 595 – the Vaccine Mandate

The Executive Order ("EO 595"), issued by Governor Baker on August 19, 2021, states:

Section 1: It is the policy of the Commonwealth that all executive department employees shall be required to demonstrate that they have received COVID-19 vaccination

and maintain full COVID-19 vaccination as a condition of continuing employment.

The Order further requires that:

Section 2: The Human Resources Division ("HRD") shall within 60 days of this order establish and issue a written policy for all executive department employees to require proof of COVID-19 vaccination

, and the heads of all executive department agencies, bureaus, departments, offices, and divisions shall then implement the terms of the HRD policy. The HRD policy shall include the elements listed below:

1. a requirement that all executive department employees demonstrate no later than October 17, 2021 to their employing agency, bureau, department, office, or division that they have received COVID-19 vaccination and, going forward, that they demonstrate they are maintaining full COVID-19 vaccination ;

2. a procedure to allow limited exemptions from the vaccination requirement where a reasonable accommodation can be reached for any employee who is unable to receive COVID-19 vaccination due to medical disability or who is unwilling to receive COVID-19 vaccination due to a sincerely held religious belief;

3. a method for documenting and verifying vaccination status among executive department employees that ensures all information will be maintained confidentially and separately from any employee's personnel files;

4. appropriate allowance of Commonwealth-provided sick leave or other time off for employees in order to obtain COVID-19 vaccination ; and

5. appropriate enforcement measures to ensure compliance, which shall include progressive discipline up to and including termination for non-compliance and termination for any misrepresentation by an employee regarding vaccination

status.

See Ex. 2 to Complaint (Docket No. 1) at p.2-3.

MCOFU and Individual Plaintiffs

The MCOFU is a party to a collective bargaining agreement with the Commonwealth. See Complaint (Docket No. 1) at ¶ 9. The individually named Plaintiffs have worked for varying lengths of time for the Massachusetts Department of Correction ("DOC") as Correction Officers, responsible for the care, custody and control of the Commonwealth's inmate population. The positions in which Plaintiffs are employed are within statewide Bargaining Unit 4 ("Unit 4"), for which the Plaintiff MCOFU is the duly-designated collective bargaining representative. Pursuant to Mass. Gen. L. c. 150E, § 6, MCOFU and the Commonwealth have negotiated and entered into a series of collective bargaining agreements which establish the terms and conditions of employment of Unit 4 members. The CBA expired by its own terms on June 30, 2021. See Complaint at ¶ 9, Ex. 1, p. 81, Art. 34. Pursuant to an evergreen or continuation clause, however, the CBA's terms have remained in effect since that date. See id. , p. 81, Art. 34.

The CBA contains numerous provisions regarding MCOFU members’ health and fitness to serve as Correction Officers ("COs"), including references to the possibility of infectious diseases entering DOC facilities and various terms that may impact privacy concerns of COs. For example, the CBA requires MCOFU members "to be subject to an immediate drug test if probable cause of drug use exists as determined by his/her Superintendent or management designee." CBA, p. 76, Art. 29. The CBA provides for "Physical Fitness Standards" for COs to be developed by the Human Resources Division ("HRD") of the Commonwealth's Executive Office of Administration & Finance, including standards of fitness for initial hiring as a CO. Id. , pp. 76-78, Art. 30, & Memorandum of Understanding ("MOU"), pp. 89-90. Additionally, an MOU attached to the CBA includes requirements for COs’ personal appearance and grooming. Id. , p. 101.

Article 32 of the CBA, entitled "Contagious Disease," requires testing for contagious diseases under specified circumstances, including testing for tuberculosis

. See Complaint, Ex. 1, p. 79. If there is an outbreak of a contagious disease and a MCOFU member is found to have tested positive for the contagion and needing medication they "shall have such medication provided by the Department [of Correction]." Id. , p. 80, ¶ 6. Any employee who tests positive for tuberculosis must have a follow-up chest X-Ray. Id. at ¶ 7. Additionally, "[a]ny employee who tests positive for any communicable disease is expected to and must follow all recommended health procedures, i.e., the taking of medication, proper testing, etc., which are provided by the [DOC] and DPH." Id. at ¶ 9. Finally, the CBA states: "Where credible evidence exists (as determined by the appropriate state Agency or Department) of a communicable disease (e.g., Tuberculosis [i]s, Hepatitis B, etc.), the Employer shall forthwith make every reasonable effort to provide all employees coming into contact with the afflicted person(s) and/or environment, with appropriate training and advice." Id. , p. 61, Art. 20, § 1.C.

Since the onset of the pandemic,...