RI Firefighters Seek Injunction to Block Vaccination Mandate

Rhode Island State Association Of Firefighters

Katie Mulvaney

The Providence Journal

(MCT)

WARWICK — The Rhode Island State Association of Firefighters is challenging a Department of Health mandate that health-care workers including EMTs receive their COVID vaccination by Oct. 1 or risk losing their jobs, arguing that it’s violating their collective-bargaining rights and the state Constitution.

The association, representing some 20 firefighters’ unions throughout the state, implored Superior Court Judge Melissa Darigan on Thursday to declare the regulation invalid because it conflicts with the Firefighters’ Arbitration Act, a state law that requires the negotiation of terms and conditions of employment.

The regulation takes away firefighters’ right to bargain the effects of the mandate, said Joseph F. Penza Jr., representing the association. “It changes a term and condition of employment.”

The regulation requires that health-care workers be vaccinated in order to maintain their license. Many firefighters are EMTs licensed through the Department of Health.

Penza says that without a preliminary injunction blocking the regulation until the case is decided on the merits, firefighters will suffer irreparable harm. He says unvaccinated firefighters face losing their jobs, salaries and benefits — with little recourse if the vaccination policy is ultimately rejected by the court.

He warned that the mandate could lead to unintended public-safety consequences if firefighters leave the ranks, potentially dramatically increasing response times in emergencies and compromising patient care.

‘Who will perform these services … ?’

“The unintended consequence is who will perform these services if [firefighters] lose their jobs? … We don’t want people to lose their lives because there aren’t enough firefighters,” Penza said.

About a quarter of the association’s 1,400 firefighters haven’t been vaccinated, for medical or other reasons, association President Joseph A. Andriole told The Journal earlier this month.

Penza said the regulation also violated the due process clause of the state Constitution in failing to provide a broader medical exemption or any exemption at all on religious grounds.

He told of a firefighter who feared the vaccine’s possible risk to her unborn child.

“You can’t take the vaccine out of someone’s arm,” Penza said.

Assistant AG: Vaccine mandates are not new

Assistant Attorney General Michael Field argued equally fervently that court precedent has backed mandatory vaccinations for more than a century.

“As a matter of law, a mandatory vaccination has been consistent with the Constitution for 125 years,” Field said.

In 1905, the U.S. Supreme Court upheld the authority of states to enforce compulsory vaccination laws following an outbreak of smallpox in a Massachusetts case.

Under state law, the director of the Rhode Island Department of Health “shall do all in its power to ascertain the causes and the best means for the prevention and control of diseases or conditions detrimental to the public health, and adopt proper and expedient measures to prevent and control diseases and conditions detrimental to the public health in the state.”

‘There are choices involved’

Further, Field said, firefighters who decline to get vaccinated would be restricted from performing health-care services but could assume other duties in the department.

“The firefighters have a choice … It’s a difficult choice. It’s an emotional choice, but it’s a choice,” Field said.

Darigan echoed that reasoning in questioning the firefighters.

“No one’s saying that anybody must take this vaccine. There are choices involved,” Darigan said.

Darigan wondered, too, whether the prospect of losing one’s job was an apprehension or a certainty.

Health Director Dr. Nicole Alexander-Scott earlier this week announced a 30-day window in which unvaccinated health-care workers could continue to work beyond Oct. 1 if their absence posed a risk to quality of care.

Field said Thursday that the unvaccinated worker would be removed from patient care and face graduated discipline over the 30-day period.

The deadline applies to all workers, unless they have an approved medical exemption. Workers can seek exemptions on a very limited basis based on severe allergic reaction after a previous dose or to a component of the vaccine; an immediate severe allergic reaction after a previous dose or known diagnosed allergy to a component of the vaccine; a history of myocarditis or pericarditis after a first dose or if they have received the Monoclonal Antibody Treatment within the 90 days prior to Oct. 1.

“The DOH should at least have an open mind … to consider that someone may have legitimate medical concerns that haven’t been considered,” Penza said.

Field was joined in backing the policy by Vincent F. Ragosta Jr., representing Smithfield and North Providence, which, like many cities and towns and fire districts, are named defendants.

Ragosta emphasized that the requirement that firefighters maintain an EMT license was agreed to and bargained for as part of their employment contract.

Darigan said she would rule Tuesday on the likelihood the firefighters would succeed in the case and whether they will face irreparable harm without an injunction.

COVID by the numbers

Cases in R.I.: 170,293 (284 reported Thursday)

Negative tests in R.I.: 4,991,453 (18,567 reported Thursday; 1.5% positive rate)

R.I. COVID-related deaths: 2,820 (2 reported Thursday)

Rhode Islanders hospitalized with COVID: 127 (20 in intensive care)

Fully vaccinated in R.I.: 708,977 (774,185 at least partially vaccinated)

Cases in Mass.: 798,905

Mass. COVID-related deaths: 18,504

Cases in U.S.: 42,613,490

U.S. COVID-related deaths: 682,042

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