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Is New York City’s Vaccine Mandate for Private Employers Legal?

Dec. 9, 2021, 9:00 AM

With the holiday season in full swing, New York City employers began their workweek taking in surprising news from the city’s outgoing mayor. On Dec. 6, Mayor Bill de Blasio announced several initiatives to expand New York City’s rules for vaccination against Covid-19, citing inevitable holiday get-togethers and the arrival of the omicron variant, with the expectation that its high rate of transmission will lead to a new spike in cases.

The mayor wants to avoid dramatic shutdowns as currently seen in Europe. The deadlines under his new initiatives come up quickly and it remains to be seen if legal challenges will follow. For now, be mindful that all private employers in New York City are likely to be impacted by this announcement and should begin to prepare for the mandate.

What Are the New Rules?

While details are mostly unknown for now, the mayor’s press release advises that, effective Dec. 27, the nation’s first municipal vaccine mandate will be imposed on private employers in New York City, affecting roughly 184,000 businesses and requiring that their employees receive at least one dose of a Covid-19 vaccine before the year’s end.

Formally, the mandate is an order (which will be posted here) issued by the City Health Commissioner on Dec. 6, but guidance regarding enforcement and implementation will not be available until Dec. 15, “well before” the mandate goes into effect 12 days later, according to Mayor de Blasio.

In a press conference, the mayor hinted that enforcement could come with penalties for non-compliance, and he said the mandate would apply to employees who work in-person with at least one other person, but not to fully remote workers. We also anticipate that the guidance will address an employee’s right to request reasonable accommodations in connection with the vaccine mandate based on a disability or sincerely held religious belief.

In addition, the mayor announced expansions to the city’s “Key to NYC” program. Effective Dec. 14, that initiative’s requirements that patrons of indoor dining, fitness, entertainment and meeting spaces have had at least one dose of a Covid-19 vaccine will newly apply to children aged 5 and older. In addition, rules previously issued for students aged 12 and older who participate in “high risk extracurricular activities” will also apply to children aged 5 to 11 as of Dec. 14.

Beginning Dec. 27, the Key to NYC rules will tighten, requiring members of the public who wish to patronize certain establishments in the city to be fully vaccinated. In other words, a single dose of a two-dose vaccine will not be enough to gain entry to indoor facilities covered by the Key to NYC initiative.

Can the Mayor Do This?

Many employers are asking whether the mayor, particularly an outgoing mayor whose term ends when the mayor-elect takes office on Jan. 1, 2022, has the authority to require private sector businesses to comply with what even Mayor de Blasio has described as “aggressive” measures.

Inevitable are comparisons to the various efforts by President Biden’s administration to require federal contractors, many health care providers and other private businesses to comply with vaccine mandates, all of which now face legal challenges in federal courts around the nation.

The short answer appears to be: Yes, sort of. Technically, the mandates announced on Dec. 6 are not mayor’s orders. Once formalized, the new requirements will just supplement numerous orders already issued by the City Commissioner of Health. The New York City Charter authorizes the City Commissioner of Health to take action to supervise the control of communicable diseases and conditions hazardous to life and public health and safety.

New York State has been under a statewide declaration of disaster emergency since Gov. Kathy Hochul (D) issued an Executive Order on Nov. 26, based on anticipated effects of new Covid-19 variants. Such circumstances lend further credence to the mayor’s assertions that bold actions are necessary to avert a return to even stricter measures, such as lockdowns.

As with most legal issues, the better answers are “maybe” and “time will tell.” The mayor, during his press conference, was unable to provide many specifics as to how a mandate will be implemented in just three weeks, to take effect just three days before his last full day in office on Dec. 31.

It is possible that private employers and other parties, including unions representing private sector employees who work in the city, may challenge the lame duck de Blasio administration’s authority to impose a vaccine mandate as part of a health and safety rule unilaterally. It is also possible that the incoming administration will walk back the rules.

Certainly, there are potential issues with imposing a vaccine mandate on any employers of union-represented employees bound by collective bargaining agreements, given that setting conditions of employment would typically be a subject of mandatory bargaining.

The question of what bargaining obligations the order may trigger will depend on its terms as well as the latitude afforded to employers by the city, through the language in the order and any guidance made available.

Under recent guidance issued by the General Counsel of the National Labor Relations Board, that agency has taken the position that an employer would be obligated to bargain with its employees’ representative over implementation of the order and its regulations if the rules allow an employer “flexibility and latitude” in crafting its compliance program.

The New York City Department of Health promises further details by Dec. 15, on its vaccine information website.

Timeline for New NYC Vaccine Rules

For easy reference, here is what (it seems) you can expect before year’s end:

  • Dec. 14: Rules for children ages 5 to11 take effect, including “Key to NYC” requirements for a first vaccine dose as a pre-requisite for entering many public indoor spaces.
  • Dec. 15: Guidance on implementation and enforcement of the new vaccine mandate for employers to be released.
  • Dec. 27: Deadline for NYC employers to effectuate the vaccine mandate.

This column does not necessarily reflect the opinion of The Bureau of National Affairs,Inc. or its owners.

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Susan Gross Sholinsky, Steven M. Swirsky, Lauri Rasnick, and Nancy Gunzenhauser Popper are members of the firm in Epstein Becker Green’s Employment, Labor, & Workforce Management practice in the New York office.