After a total of seven known cases of the Omicron variant had reportedly been confirmed in New York City, on Dec. 6, 2021, Mayor Bill de Blasio announced a first-of-its-kind mandate requiring all private sector employers to implement mandatory employee vaccinations. The deadline for compliance with the new law is Dec. 27, 2021, just a few days before Mayor de Blasio leaves office upon the completion of his second four-year term. The mandate applies to any employer with in-person employees, regardless of workplace population or the size of employer.
Unlike the on-hold COVID-19 Emergency Temporary Standard issued by the Occupational Safety and Health Administration (OSHA) – the legality of which is currently pending before the U.S. Sixth Circuit Court of Appeals (see Holland & Knight's previous alert, "The Sixth Circuit Wins the OSHA ETS Lottery: What We Know and What Happens Next," Nov. 17, 2021) – the New York City vaccination mandate does not contain a testing option as an alternative to vaccination. However, medical and religious exemptions to vaccinations will be available for those employees who qualify.
According to the Office of the Mayor, the new mandate, which follows a previous mandate for City employees and a recent mandate for employees at private and religious schools, will affect 184,000 businesses. Although details on enforcement and accommodations are largely yet unavailable, the City intends to issue guidance by Dec. 15, 2021, through its Department of Health and Mental Hygiene.
Mayor-Elect Eric Adams, who assumes offices on Jan. 1, 2022, remained non-committal and, through a spokesperson, stated that he will "evaluate this mandate and other COVID strategies when he is in office and make determinations based on science, efficacy and the advice of health professionals." Mayor-Elect Adams will face pressures from both sides of the issue, those in favor and those against the mandate, before and especially immediately upon taking office.
The Mandate's Impetus: Omicron and Winter Spell Double Trouble
In a television news conference announcing the mandate, Mayor de Blasio characterized the requirement as a "preemptive strike" against Omicron, explained that the variant "looks like it's very transmissible" and opined that "the timing is horrible with the [fast-approaching] winter months" with an increase in indoor gatherings, especially over the upcoming holidays. The Mayor emphasized the need to stop the spread of COVID-19 given the presence of the Omicron variant. In his words, COVID-19 is "the biggest crisis not only of our time, but in the history of New York City. We cannot let COVID back in the door again." Mayor de Blasio made clear that he and his health team expect a surge in COVID infections this winter due to the Omicron variant.
Expansion to "Key to NYC" Requirements: Vaccination for All
Also announced on Dec. 6 by Mayor de Blasio, although to less surprise and as a companion to the mandate for all private sector employers, were expansions for the "Key to NYC" program, the City's vaccination mandate covering workers and customers at indoor dining, fitness, entertainment and performance venues. Specifically, for entry at such indoor establishments, the law will require vaccination, if not full vaccination, for younger children. By Dec. 14, children ages 5-11 must show proof of having received at least one dose of a vaccine, and by Dec. 27, all persons 12 and older must show proof of having have received two vaccine doses, except for those who have received the one dose of the Johnson & Johnson vaccine. The current version of the program requires only one vaccine dose to enter such indoor establishments for children 12 and older and for all adults.
The Takeaway: Reaction and Potential Legal Challenges
Politicians from both sides of the aisle, business persons and trade groups, among others, have already weighed in, with some calling Mayor de Blasio's actions arbitrary, anti-business and even illegal, and others praising the Mayor's announcement and saying it was needed to prevent another COVID surge. It is almost certain that formal legal challenges will be filed in various forums prior to Dec. 27, seeking to enjoin the imposition of the mandate.
Employers in New York City that have already required vaccinations on their own are likely pleased to have cover from the government. However, those employers that don't have such a policy in place might consider preparing a plan to comply with the new law, although implementation can be delayed for now to see if litigation will put the mandate on hold (at least temporarily).
