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NYC Shot Mandate Built to Withstand Suits, Lawyers Say (1)

Dec. 7, 2021, 3:15 PMUpdated: Dec. 7, 2021, 9:51 PM

New York City’s newly announced Covid-19 vaccination mandate for private-sector workers goes further than federal proposals, with legal challenges likely trailing in its wake.

The city’s vaccination order applies to every private-sector employer in the city, while the federal OSHA standard set a 100-employee threshold. And New York City’s rule doesn’t allow for weekly testing in lieu of a vaccination, as the Occupational Safety and Health Administration permitted.

The order from Mayor Bill de Blasio requires all private-sector workers to have at least one dose of a Covid-19 vaccine by Dec. 27, just three weeks from now and the day the requirement takes effect. The actual implementation of the city’s mandates will be left to the incoming mayor and fellow Democrat Eric Adams, who takes office Jan. 1.

New York City could be the first of several states and local governments to establish vaccination requirements as federal mandates are litigated in court, said James Sullivan, co-chair of Cozen O’Connor’s workplace safety practice group and former chairman of the U.S. Occupational Safety and Health Review Commission,.

“It’s a state battle now. I think you’re going to see more of it,” he said. When state vaccination requirements have been challenged in federal court, the courts often have concluded the mandates were within the state’s public health powers, Sullivan said.

Municipalities in New York have wide home-rule authority to enact public health mandates, said law professor Lawrence Gostin of Georgetown University Law Center’s O’Neill Institute for National and Global Health Law.

But enacting a vaccination requirement for all New York City private-sector workers and enforcing it through employers is unprecedented for the city, Gostin said, adding that this mandate could run into legal problems because de Blasio took such extraordinary action without specific authority from the City Council.

The outgoing mayor unveiled the new initiative as the coronavirus pandemic heads into its third U.S. winter, invigorated by the recently evolved and highly contagious omicron variant of the virus. According to city Health Department data, an average of 1,551 new Covid-19 cases have been confirmed daily over the past seven days, a slight increase over the average for the past four weeks.

The city is allowed by law to set public health requirements that are broader than OSHA’s requirements as its municipal power to safeguard public health isn’t limited to the workplace, said attorney Jenifer Bologna, a principal with Jackson Lewis P.C. in White Plains, N.Y.

In this case, the requirements are being issued by the Health Department.

New York City had already enacted vaccination requirements for restaurant, gym, and entertainment workers as part of its Key to NYC program, Bologna pointed out. Some New York City teachers have sued to block an earlier mandate, claiming it infringes on their religious freedom. A U.S. appeals court revived their claims on Nov. 28.

The city’s police union sued to block the requirement from being imposed on municipal workers in October, but failed to win a temporary restraining order from a state court judge.

Court Outlook

During Monday’s briefing, city officials didn’t discuss how the vaccination mandate would be enforced or the fines employers would face. Those details could come by Dec. 15 when the city has promised to issue guidance on the rule.

Attorney Devjani Mishra, a shareholder with Littler Mendelson P.C. in New York City, said she expects the city mandate will often be enforced based on workers’ complaints or outbreak reports from health authorities.

Employers want to know what medical and religious exemptions and accommodations will be allowed, Mishra said.

Lawsuits over the newest measure are expected, too, attorneys said.

Sullivan said a challenge of the city’s order could be more difficult than contesting the federal government’s vaccination requirements for federal contractors and health-care workers or OSHA’s vaccination-or-testing standard.

“States have greater leeway with police powers,” he said.

In general, federal courts as far back as 1905 have found that states can require vaccinations, Sullivan said. In the 1905 case, Jacobson v. Massachusetts, the U.S. Supreme Court upheld the state’s requirement for adults to be vaccinated against smallpox.

For example, in October the U.S. District Court for the District of Maine upheld a Covid-19 vaccination mandate for health-care workers even though the requirement didn’t allow for religious exemptions and the U.S. Supreme Court declined to immediately reverse the decision.

Jackson Lewis’s Bologna said city officials believe their Health Department rule is less vulnerable to being overturned by a court because that mandate covers all private-sector workers, while the federal OSHA rule carved out an exception for employers with less than 100 workers, an aspect that could weaken the case for its emergency need justification.

Industry’s Wary

Construction industry groups are challenging the federal OSHA vaccine shot-or-test rule. Mike Elmendorf, president of the Associated General Contractors of New York State, said his group won’t decide whether to challenge the city order until it sees details of the mandate.

The association encourages workers to be vaccinated but doesn’t believe contractors should have to enforce a city health mandate.

“It’s putting us in the middle,” Elmendorf said.

The National Federation of Independent Business, which is also contesting the OSHA standard, doesn’t support the mayor’s plan.

“NFIB has and continues to oppose any mandate that restricts employers’ abilities to handle their business operations, address employees’ unique situations, or dictate their hiring and firing policies,” the federation’s New York assistant director, Ashley Ranslow, said in written statement.

Like the contractors, the federation is waiting to see the written requirements before deciding whether to fight the standard, Ranslow said.

(Updated with additional reporting throughout. )

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com