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Judge considers correction officers' suit over COVID vaccine mandate

A federal judge has taken under advisement a lawsuit by Massachusetts correction officers over Gov. Charlie Baker's coronavirus vaccine mandate that takes effect this weekend.

The mandate requires executive branch workers to be fully vaccinated by Oct. 17 or face discipline, including possible job loss. That includes the almost 4,000 members of the Massachusetts Correction Officers Federated Union (MCOFU).

U.S. District Court judge Timothy Hillman heard arguments Thursday in the union's suit asking for a preliminary injunction against the mandate. The union argues that requiring a vaccine violates the correction officers' contractual and constitutional rights and interferes with officers' rights to decline medical treatment.

"That's not the bargain that the parties struck," said MCOFU attorney James Lamond during Thursday's hearing. "That [the vaccine mandate] does adjust in a fairly fundamental way the rights and responsibilities they have negotiated."

The suit names Baker and Department of Correction Commissioner Carol Mici. The plaintiffs are the union and four correction officers: Michael Mosher,
Zac Gustafson, Denina Dunn and Angela Pucci.

Lamond also argued the state could have done something short of a mandate, such as requiring regular COVID testing instead. He said that is similar to what's done with workers in the Trial Court system, which he called a comparable entity.

"I'm not sure that I agree with you that it's comparable," Judge Hillman said. "I'm having trouble getting over the congregate living situation that your clients are dealing with every day."

Lamond said court workers deal with many of the same people as correction officers, and peer state agencies — those not in the executive branch — are not mandating vaccines for all workers.

When Judge Hillman asked about the number of correction officers vaccinated, Lamond said he did not know the exact percentage, but a "substantial minority are not." A MCOFU letter to members last week said that 47% of its members are vaccinated.

The state argues that correction officers already submit to conditions of employment, such as agreeing not to smoke tobacco — even off the job — and to maintain physical fitness and grooming standards. Assistant Attorney General Jennifer Greaney said it is not a violation of constitutional rights to impose working conditions on public employees.

"The idea that there is a constitutional liberty interest type of right at issue here really is a red herring," Greaney said. "This is not some broader mandate that requires vaccinations. It is making the vaccination a condition of employment. If a person does not want to get vaccinated, they do not have to. But there will be employment consequences."

The state is preparing for staffing shortages at prisons this weekend when the mandate takes effect. Baker has activated 250 National Guard members who began training at prisons this week to help with "transportation and external security functions." The Department of Correction says it is bringing in retired correction officers to help as well.

"As October 17 approaches, the DOC will assess which facilities may require staffing support and will deploy resources as needed," a DOC spokesman said in a statement.

MCOFU did not respond to requests for comment.

Some of those in custody at state prisons say staff members have warned that they will leave their jobs this weekend if the mandate goes into effect.

"What appears to be happening is that 'old guards' who are unwilling to comply with the governor's executive order will retire or be reassigned," wrote one prisoner at MCI-Norfolk who did not want to be named because of concerns about retaliation.

Baker’s mandate requires state executive branch workers to be fully vaccinated or claim a personal, medical or religious exemption by Oct. 17. If they do not, they face discipline as severe as termination. It is considered one of the strictest vaccine mandates in the nation.

A similar lawsuit by state police failed when a Superior Court judge last month denied the department's request to postpone the mandate and allow them to negotiate over it.

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Deborah Becker Twitter Host/Reporter
Deborah Becker is a senior correspondent and host at WBUR. Her reporting focuses on mental health, criminal justice and education.

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