While employers throughout the country are waiting on the Sixth Circuit to consider OSHA’s Emergency Temporary Standard requiring private employers with more than 100 employees to implement mandatory vaccination or testing policies, New York City employers are contending with additional local and state rules for vaccines and masks.
Last week, we discussed Mayor DeBlasio’s announcement that New York City’s Department of Health will issue a mandate requiring full vaccination for any employee of a private employer. Early this week, the NYC Health Commissioner issued an Order spelling out details of that new mandate. Beginning on December 27, 2021, employers must exclude unvaccinated employees from the workplace, although the Order does not preclude employers from providing reasonable accommodations for medical or religious reasons. (Interestingly, it also does not specifically require such accommodations, although employers could run afoul of federal discrimination law if they don’t offer them.) In the event that the employer accommodates an employee for medical or religious reasons, the employer must maintain records stating the basis for the accommodation and any supporting documentation provided by such worker. As we noted previously, Mayor-Elect Eric Adams, who takes office on January 1, 2022, has said that he will evaluate the new measure once he becomes mayor, but many believe that the new mayor will only “tweak” the Order as opposed to rescinding it completely.
In addition to the new New York City mandate, New York employers must also contend with a somewhat different mandate from the state government. While the New York State mandate does not require vaccinations, since December 13, 2021, all New York employers have been required to either mandate that all employees (vaccinated or not) wear masks in the workplace OR adopt a vaccine mandate that requires all employees working on-premises to be vaccinated. This statewide mandate will remain in effect at least until January 15, 2022, although we expect that it will be extended.
Obviously, if an employer complies with the New York City mandate by requiring unvaccinated employees with religious or medical exemptions to work from home, they will be in compliance with the State mandate as well. The State mandate, however, is presenting an immediate challenge to employers who have allowed vaccinated employees to remain maskless when they come into the office, since such policies would run afoul of the State mandate if a single unvaccinated (but masked) employee is allowed to come into the office.
Whether some court would enjoin either the New York City or New York State mandates is yet to be seen, but so far, courts have been much less receptive to challenges to state and local mandates than they have to federal mandates, as health care workers and teachers have discovered.
