The union has asked Washington County court to block Vermont from ordering its employees back to the office on December 1. A ruling is expected Wednesday or Friday.
Attorneys for the state of Vermont and for the Vermont State Employees' Association argued in court Wednesday whether a judge should prevent the upcoming return-to-office mandate for state employees.
Gov. Phil Scott has ordered state employees to return to in-person work at least three days a week starting Dec. 1. But the state employees union has fought back in multiple venues. Earlier this month, it filed charges with the state Labor Relations Board and sued the state to demand an injunction until the labor board could rule on the case.
Washington County Superior Court Justice Dan Richardson said the matter would come down to a few key questions: whether he had statutory authority to issue an injunction, and whether the mandate constituted an "irreparable harm" that required him to intervene before the board's decision could be made.
Union attorney Alfred O'Connell said the mandate could force dozens of state employees to relocate closer to their designated work location. He gave the example of a breastfeeding mother who would be forced to commute three hours each way to work in person.
"She would be required to breast pump, or take her child with her on a six-hour commute," he said.
Attorneys for the state pushed back, arguing that the state has provided a way for employees to request an exemption based on their individual circumstances.
"That mother and many other state employees would receive careful, individualized attention, and none would be facing a Dec. 1 deadline," state's attorney Peter Sterling said.
The two parties went back and forth over whether the exemptions policy was sufficient to prevent the irreparable harm question. At one point, Sean Brown, deputy director of the Agency of Administration, was called to testify on the details of the exemptions. He told the court that, out of the more than 8,000 state employees, approximately 425 had asked for an exemption. So far, only 25 of those requests had been reviewed and none had been denied.
Sterling also argued that Vermont has a public interest in ordering state employees to the office "to provide for Vermonters the services they expect," adding that the executive branch has the authority to decide on the best use of taxpayer money.
O'Connell shot back that the state was investing millions of taxpayer dollars in reclaiming office space for in-person work.
"The whole thing smacks of the governor being over his skis, making a decision on the fly, and now here we are trying to clean up that mess," he said.
But Richardson said he can't base his ruling on that aspect of their arguments.
"I understand attorney O'Connell's arguments and passion," he said. "Ultimately the Labor Relations Board has to make that determination, and this court isn't really a position of posture or proclivity to make the movement on the policy choices that the executive branch made."
As the hearing wrapped up, Richardson said he was unlikely to grant a very broad injunction, given the legal limitations of the court's jurisdiction. He contemplated a narrower injunction that simply prevented people with hardships from being fired while the labor board deliberated.
"At the same time, I think it's fair to both sides for the court to go through these arguments a little bit further," he said.
He said he hoped to have a decision made by the end of the day on Wednesday or on Friday.
"I recognize there are a number of individuals making plans and expectations" based on this decision, he said.