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WORKSPAN DAILY |

New York City Attempts to Implement Vaccine Mandate

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Prostock-Studio / iStock

As part of a series of measures to try and slow the spread of the new Omicron variant, New York City Mayor Bill de Blasio announced a coronavirus vaccine mandate for private employers that operate in the city.

Under New York City’s new mandate for private employers, employees who work in-person at private companies must have one dose of the vaccine by Dec. 27. Remote workers will not be required to get the vaccine. There is no testing option as an alternative.

The mandate is considered the first of its kind on a city level to require private sector workers, including those not in the hospitality industry, to be vaccinated. At least 22 states now require coronavirus vaccination for some categories of workers, like those employed by the state or in health care settings or schools, according to the National Conference of State Legislatures. Dozens of counties and cities, including New York City, have also imposed vaccine requirements on those kinds of workers.

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At the federal level, the Occupational Safety and Health Administration issued an emergency temporary standard (ETS) for private employers with 100 or more employees, but the 5th U.S. Circuit Court of Appeals immediately granted an emergency stay of the requirement, with the New Orleans-based court delaying the federal requirement because of “grave statutory and constitutional issues” raised by plaintiffs challenging the mandate.

The ETS was scheduled to go into effect at the beginning of 2022, but it remains uncertain whether it will survive the judicial process. With that as the precedent, it’s likely New York City’s mandate will face similar legal challenges.

“The City has attempted to bolster its defenses to any legal challenges by having the Commissioner of Health issue the vaccine mandate in response to a public health emergency posed by the new wave virus spread and the threat of infections due to the Omicron variant,” said Jason Habinsky, partner and chair of the labor and employment practice group at Haynes Boone. “It remains to be seen how New York courts will evaluate the merits of the litigation.”

John Ho, co-chair of the OSHA Workplace Safety Practice at Cozen O’Connor, said the New York City mandate is more likely to survive legal challenges because “municipalities generally have broader authority to enact public health laws.”

“Historically, when state vaccination requirements have been challenged in federal court, courts often have determined that such mandates are within its public health powers,” Ho added.

Another wrinkle in the New York City mandate is that Mayor de Blasio is in the final weeks of his term, as Mayor-elect Eric Adams takes office on Jan. 1. Both Ho and Habinsky noted that it remains to be seen whether Adams’ administration will keep the mandate it in place or modify it in any way amid likely legal challenges.

However, if the mandate were to proceed without any legal holdups, private employers will be required to mandate vaccinations in the workplace, and ensure compliance, by Dec. 27. This means that employees will be required to be vaccinated with a first dose of a two-dose vaccination by that date, absent a protectible exemption.

“Importantly, unlike other mandates such as OSHA’s federal mandate which remains in limbo, there will be no option to test as an alternative to vaccination,” Habinsky said. “As for an exemption, employers will be required to offer exemptions from vaccination for those entitled to reasonable accommodation on the basis of a medical disability or sincerely held religious belief.”

New York City will issue further guidance concerning reasonable accommodation and enforcement on or before Dec. 15. Unlike OSHA’s ETS, this city mandate has a much smaller window for compliance, which could put many private employers operating in New York City in a bind. Habinsky said employers should start preparing employees for mandatory vaccinations and begin collecting information and proof of vaccination to better position themselves.

“Employers who already mandate vaccination should be certain that existing policies and procedures are consistent with the City’s upcoming guidance and further requirements,” Habinsky said. “Employers should further begin implementing policies and procedures for mandating vaccination, for granting exemptions and the interactive process, and providing reasonable accommodations.”

Ho added that New York City’s mandate likely won’t be the first, as other cities, states and municipalities may pass their own vaccine mandates or, as Florida recently did, prohibitions against them.

“Businesses need to continue to carefully watch state and local laws as the legal challenges may start to move away from the federal forum to state or local ones,” Ho said.

About the Author

Brett Christie II.jpg Brett Christie is the managing editor of Workspan Daily. 


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