R.I. judge rejects firefighter union challenge to vaccine mandate

Updated at 3:47 p.m. on Sept. 28, 2021.

PROVIDENCE – A Rhode Island judge threw out a legal challenge from a group of firefighters unions that sought to stop the enforcement of the state’s Oct. 1 COVID-19 vaccine mandate on its members.

Superior Court Judge Melissa E. Darigan said on Tuesday that Rhode Island State Association of Fire Fighters has no legal standing to receive a temporary injunction to stop the state’s Department of Health from requiring health care workers to be vaccinated in order to maintain EMT licenses. A lawyer for the firefighters association, representing more than 30 local firefighters unions, said in court on Friday 10% of union members remained unvaccinated, and that it could cause staffing shortages and put the community in danger if they were terminated.

Darigan said the R.I. Department of Health has the constitutional authority to enact a vaccine mandate to protect the public health, and the firefighters union group failed to show “irreparable harm” as a result of the state vaccine mandate for health care workers. However, Darigan noted that theoretically, if firefighters are terminated and the regulation were later found to be invalid, they could be compensated for damages against them and potentially be reinstated to their jobs.

“The plaintiff would have to show that there is no adequate remedy at law if their substantive claims were later found to be valid,” Darigan said. “Consider this scenario: If the individual firefighters refuse to take the vaccine, and if the Department of Health thereafter suspends or revokes their license, and if the employers of the firefighters terminated their employment for failing to maintain the license, than those firefighters if the regulation were later found to be invalid would likely have an employment claim against their employer for improper termination.”

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And Darrigan said those who believe “actual harm” can be caused by taking the vaccine itself have not substantiated their claims, citing numerous scientific studies on the safety of COVID-19 vaccines.

Darrigan said even though she expects the plaintiff to appeal her decision to the Rhode Island Supreme Court, she asked the Board of Health to “expeditiously” issue and circulate an order reflecting her decision, reinforcing the authority of the Department of Health to require COVID-19 vaccination for health care workers to maintain their EMT licenses.

Darrigan said she didn’t take the decision lightly, when it comes to the fate of the firefighters in question or the health of the public at large.

“The court does not discount in any way the fact that the choice that is being presented to the firefighters here may be extraordinary difficult to some on a personal level, or that the consequences for those who choose not to comply with the regulation may be painful to them financially, or detrimental to their careers, or cause hardship to their families,” Darrigan said. “But the court cannot be swayed by any party’s personal angst, or even the possibility that there may be consequences stemming from a decision not to vaccinate.”

Joseph A. Andriole, president of the Rhode Island State Association of Firefighters, said he was “disappointed” with the court’s decision, but also wanted to dispel any notion that his group is against the vaccine, stating that it’s the only way to defeat the pandemic.

Andriole said the association of firefighters unions will explore a potential appeal of the case, but the Oct. 1 deadline is just days away, so it may be a lost cause. The association argued in court that the state mandate violated the Firefighters’ Arbitration Act, which requires negotiation for any changes in terms and conditions of employment, although the judge said the health department’s lawful authority to issue and regulate EMT licenses should not be impacted by agreements between firefighters and the communities they serve.

“Because of the closeness of date for the mandate to be implemented, we’re not sure that is a realistic option at this point,” said Andriole, who called the state mandate “rushed and bad policy.”

Andriole said he hopes to work with Gov. Daniel J. McKee and the R.I. Department of Health on alternatives to ensure that fire stations are fully staffed.

Otherwise, Andriole said about 200 firefighters will be sidelined and fire stations will be left under-staffed as a result. Andriole said it’s about 8% of the 1,500 firefighter and EMS workers he represents who won’t be able to stay working, based on their union’s labor agreement with the communities they serve (per contract, some of the agreements don’t require an EMS license as a requirement for employment if the state changes the qualifications for the license).

“We’ll be fighting fires with less people,” Andriole said. “That’s a problem for us. Our departments here in the state are already so short-staffed that even taking out a small number could impact the delivery of fire suppression. That was the main reason for the initiation of this lawsuit.”

The Rhode Island Association of Firefighters represents firefighters for departments including North Providence, Woonsocket, East Providence, Pawtucket and Newport, although it does not include the Providence firefighters’ union. While it didn’t file a lawsuit of its own, Providence Fire Fighters IAFF Local 799 claimed the mandate will result in the loss of 10% of its workforce, and that the state should instead allow regular COVID-19 testing as an alternative for the unvaccinated.

“Providence firefighters proudly served throughout the pandemic and continue to protect the community,” said Providence Fire Fighters IAFF Local 799, in a statement posted to Facebook. “Even the most well-intended policies have consequences. It is our duty to say that the consequences of this mandate will cause undue hardship on the very firefighters that protected us.”

Update: Adds comments from firefighters unions in paragraphs 9-16.

Marc Larocque is a PBN staff writer. Contact him at Larocque@PBN.com.