In court filings this week, Boston officials say they ordered employees to show proof of Covid-19 vaccination not just to protect them, but to protect the public they serve.
The filings come in response to a Suffolk Superior Court suit by unions representing firefighters and police superior officers and detectives, who are asking a judge to do what no judge in Massachusetts has done so far: Block the city from enforcing its vaccine requirement. With the mandate set to begin on Saturday, a ruling on their request for an injunction could come this week.
In their main filing in opposition to the union request, the city said agreements signed by acting Mayor Kim Janey and unions never barred the city from enacting a vaccine mandate, that collective bargaining cannot constrain public agencies from carrying out their basic purposes and that the rapid spread of the far more virulent omicron strain have made public-health considerations paramount and enough to outweigh any collective-bargaining rights the unions might have.
To date, both Massachusetts state and federal judges have sided with government on the issue, in suits involving MBTA workers, state troopers and prison guards.
In an affidavit, Dr. Bisola Ojikutu, executive director of the Boston Public Health Commission, pointed to the direct interaction the public has with police officers and firefighters and said the far more virulent omicron strain had made the weekly testing the city had allowed for employees impractical as a method to stop the virus's spread.
Those requiring public services, in particular those provided by the employees Plaintiffs represent, do not have an option in most instances regarding whether to seek such services and/or to interact with these City employees. Police and Fire services often require these city employees to enter the homes of citizens or have extremely close contact with citizens, including vulnerable populations such as the elderly, children who cannot be vaccinated and/or citizens who have compromised immune systems. Accordingly, by ensuring its employees are vaccinated, the City significantly reduces health and safety risks to the public requiring such services.
Covid-19 testing, while useful, is a point-in-time measure of infection and testing once per week does not sufficiently ensure that an unvaccinated individual does not have Covid-19 at all other points in time during the week. While testing can help detect infection, it cannot prevent infection.
Further, even with the more virulent omicron strain and even with the risk of breakthrough infections, scientific studies have shown vaccination reduces the odds of hospitalization - reducing the burden on the city's hospitals and on city departments with sick employees - and decreases the amount of time somebody is infectious, she wrote.
Ojikutu said she and her advisors began to grow worried about a rise in Covid-19 rates as they says rates of the flu - which is also highly communicable - begin to rise. News on Nov. 24 of the new omicron variant in South Africa further concerned them, especially with the impending holidays.
She wrote that what has happened since has only validated these concerns: Testing positivity rates in Boston rose from 0.4% in June to 6.7% on Dec. 17 - and to 31.9% on Jan. 4, she wrote. Occupancy in Boston hospitals' ICUs is now nearly 95%. Vaccination in a city where only 68.4% of the total population was fully vaccinated as of Dec. 17 makes efforts to get more people vaccinated all the more important, she wrote.
On Dec. 17, City Hall began notifying the 20 unions that represent city worker that it would require proof of vaccination. On Dec. 20, Mayor Wu announced the new policy along with a requirement to show proof of vaccination to enter most public indoor spaces in the city.
City's legal arguments against an injunction (3.5M PDF).
Ojikutu's complete affidavit (3.5M PDF).
Affidavit by city's director of labor relations (220k PDF).