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


With the holiday season in full swing, New York City employers kicked off their workweek with startling news from the outgoing mayor of the city. On December 6, Mayor Bill de Blasio announced several initiatives to expand New York City’s Covid-19 vaccination rules, citing inevitable vacation get-togethers and the arrival of the omicron variant, in the hope that its high rate of transmission will lead to a further peak in cases.

The mayor wants to avoid dramatic closures as we are currently seeing in Europe. The deadlines for his new initiatives are fast approaching and it remains to be seen whether legal challenges will follow. For now, be aware that all private employers in New York City are likely to be affected by this announcement and should start preparing for the mandate.

What are the new rules?

While details are for the most part unknown at this time, the mayor’s press release says that as of December 27, the country’s first municipal vaccine mandate will be imposed on private employers in New York City, affecting around 184,000 companies and requiring their employees to receive at least one dose of a Covid-19 vaccine by the end of the year.

Officially, the warrant is an ordinance (to be published here) issued by the municipal health commissioner on December 6, but guidelines for enforcement and implementation will not be available until December 15, “well before” the mandate does not come into effect. days later, according to the mayor of Blasio.

At 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 guidelines will address an employee’s right to request reasonable accommodations as part of the immunization mandate because of a disability or sincere religious belief.

In addition, the mayor announced the expansion of the city’s “Key to NYC” program. As of December 14, this initiative’s requirements that guests of indoor dining, fitness, entertainment and meeting spaces have received at least one dose of a Covid-19 vaccine will apply to children again. aged 5 years and over. In addition, the rules previously issued for students aged 12 and over who participate in “high-risk extracurricular activities” will also apply to children aged 5 to 11 as of December 14.

Starting December 27, Key to NYC rules will tighten, requiring members of the public who wish to attend certain establishments in the city to be fully immunized. In other words, a single dose of a two-dose vaccine will not be enough to gain access to indoor facilities covered by the Key to NYC initiative.

Can the mayor do this?

Many employers ask whether the mayor, especially an incumbent mayor whose term ends when the elected mayor takes office on January 1, 2022, has the power to require private sector companies to comply with what same the mayor of Blasio described the measures as “aggressive”.

Inevitable are the comparisons to the various efforts by President Biden’s administration to require federal contractors, numerous healthcare providers, and other private companies to comply with vaccine mandates, all of which are facing legal challenges in federal courts across the country.

The short answer seems to be: Yes, sort of. Technically, the warrants announced on December 6 are not orders from the mayor. Once formalized, the new requirements will only complement the many orders already issued by the municipal health commissioner. The New York City charter authorizes the municipal health commissioner to take measures to oversee the control of communicable diseases and conditions dangerous to life and public health and safety.

New York State has been the subject of a statewide disaster declaration of emergency since Gov. Kathy Hochul (D) issued an executive order on November 26, based on the anticipated effects of new variants of Covid-19. Such circumstances give even more credence to the mayor’s claims that bold action is needed to avoid a reversion to even stricter measures, such as closures.

As with most legal problems, the best answers are “maybe” and “time will tell”. The mayor, during his press conference, was unable to provide many details on how a mandate will be implemented in just three weeks, to come into effect just three days before his last full day of mandate, December 31.

It is possible that private employers and other parties, including unions representing private sector employees who work in the city, are unilaterally challenging the power of Blasio’s lame duck administration to impose a vaccination mandate in the city. as part of a health and safety rule. It is also possible that the incoming administration will reverse the rules.

Admittedly, there are potential problems with imposing a vaccination mandate on any employer of union-represented employees bound by collective agreements, since the establishment of terms and conditions of employment would generally be a matter of concern. compulsory negotiation.

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

In the context of recent guidelines issued by the Advocate General of the National Council for Labor Relations, this agency adopted the position that an employer would be obliged to negotiate with the representative of its employees on the implementation of the ordinance. and its regulations whether the rules allow an employer “flexibility and leeway” in developing its compliance program.

The New York City Department of Health is promising more details by Dec. 15 on its vaccine information website.

Calendar of New NYC Vaccine Rules

For ease of reference, here’s what you can expect (it seems) before the end of the year:

  • December 14: Rules for children ages 5 to 11 take effect, including “Key to NYC” requirements for a first dose of vaccine as a prerequisite for entering many indoor public spaces.
  • December 15: Guidance on the implementation and enforcement of the new vaccine mandate for employers will be issued.
  • December 27: Deadline for New York employers to complete the vaccination warrant.

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 Popper by Nancy Gunzenhauser are members of the Employment, Labor and Workforce Management practice of Epstein Becker Green in the New York office.


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