December 6, 2021
On December 6, 2021, Mayor Bill de Blasio announced vaccine mandates for all private employers, the first measure by a municipality in the country. De Blasio described the measure as a “pre-emptive strike” against increasing COVID-19 cases that would also reduce transmission of the Omicron variant and avoid shutdowns of the city.
The measure will go into effect on December 27, and the city estimates it will affect over 184,000 businesses. The city has already issued vaccine mandates for indoor dining, fitness and entertainment activities, and has required city employees to be vaccinated. There will be no testing option as an alternative, and the mandate will apply to employees in a workplace with other coworkers and will not apply to fully remote workers.
A similar mandate by the Biden administration, which applies only to companies with at least 100 employees, was stayed last month by the U.S. Court of Appeals for the Fifth Circuit. The dispute over the federal mandate centers around whether the U.S. Department of Labor’s Occupation Safety and Health Administration ("OSHA") had the proper authority to issue the mandate. Attorneys for the city differentiated their effort by saying that the city’s health commissioner has clearer legal authority to issue a mandate that protects New Yorkers during a health crisis. The federal mandate case was consolidated with other similar cases to the U.S. Court of Appeals for the Sixth Circuit Court of Appeals. The national preliminary injunction is to remain in place pending a decision by the district court, though it is anticipated that the U.S. Supreme Court will eventually decide on the matter.
Mayor de Blasio, who has less than one month in office, is confident that this new mandate will survive any legal challenges, and noted that past mandates have been upheld. Last month, the U.S. Court of Appeals for the Second Circuit upheld New York’s vaccine mandate for healthcare workers, rejecting arguments that the mandate failed to provide for religious exemptions and violated religious freedoms. The Second Circuit distinguished between an exemption from the vaccination mandate and an alternative accommodation, noting that employees can still request a religious accommodation allowing them to continue working consistent with the mandate, while avoiding the vaccination requirement. Additionally, the same court upheld the city’s vaccine mandate after a lawsuit was filed by unions representing the city’s teachers and principals in October 2021. Similarly, a lawsuit seeking to block the vaccine mandate for the New York Police Department was denied by the state court, which relied on a 2019 state appellate ruling that upheld a vaccine mandate for measles.
A spokesperson for Mayor-elect Eric Adams said Mr. Adams would review the measure once in office. Mr. Adams has previously stated that he is open to revisiting some aspects of Mayor de Blasio’s mandates.
Further details and guidelines about the city measure will be released on December 15, which the mayor said will give him time to seek input from business leaders. Employers should consult with counsel regarding the upcoming mandate and evaluate their own internal vaccine policies.
For more details, click here for an earlier publication on this topic. Please contact the Gordon & Rees Employment Law practice group for additional guidance.