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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-ofthe-international-health-regulations-(2005)-emergency-committeeregarding-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 COVID19 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

10 The 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 

11 In 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 

12 Only 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

13 Paragraph seven of the MOA between the defendants and 

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

bargaining obligations associated with any proposed substantive 

changes." 

14 The parties agree that an exigency defense exists for an 

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.