WORKSPAN DAILY |
New York City Attempts to Implement Vaccine Mandate
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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 is the managing editor of Workspan Daily.