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NYC Issues Vaccine Mandate for Private Employers

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New York City Mayor Bill de Blasio, whose term as mayor ends on January 1, 2022, has announced that the city’s Department of Health will issue a mandate requiring full vaccination of any employee of a private sector business. Details are expected to issue on December 15 flushing out the terms of the mandate, which goes into effect December 27. Presumably, these “details” will acknowledge exceptions required by law, including for religious and disability accommodations. According to the NYC Department of Health website, this new mandate will not be limited in scope to apply to businesses in any particular industry and will not be based on company size. However, the mayor has publicly acknowledged exceptions for remote work and single proprietors.

Mayor de Blasio’s “Key to NYC” program, created via Emergency Executive Order 250, already requires certain public indoor businesses — “entertainment and recreational settings, and certain event and meeting spaces,” “food services,” and “gyms and fitness settings” — to check the vaccination status of all employees, interns, volunteers, contractors and customers (12 and over), and requires at least one dose of the COVID-19 vaccine, absent certain exceptions. According to the NYC Department of Health website, the “Key to NYC” requirements will also become more strict in December: starting December 14, children ages 5 to 11 will also need to have received at least one dose of a vaccine, and people 12 or over must have proof of full vaccination.

Given legal action taken against vaccination mandates including the “Key to NYC” program, the OSHA ETS and President Biden’s Executive Orders requiring vaccination, the NYC mandate may soon be the subject of litigation. Mayor de Blasio said in an interview at City Hall:

Look, when it’s a Health Commissioner’s order, what we have found is state and federal courts really fundamentally respect the right of health care authorities to recognize the extent of a problem and act accordingly. And so, every one of those mandates I talked about we’ve done previously has been ratified by the courts consistently.

Indeed, previous litigation around NYC’s requirement of vaccination for all staff in the city’s schools saw the Second Circuit conclude that the mandate was “a reasonable exercise of the state’s power to act to protect the public health,” although it also concluded that the statute had been unconstitutionally applied to staff who had requested a religious accommodation. Mayor de Blasio also distinguished the OSHA ETS:

There’s been attempts at stays, at TROs — you know, temporary restraining orders, at different points along the way, they’ve been overwhelmingly rejected by the courts. In a few cases, we had them for a few days. But, really, if you look at all the court cases around COVID mandates here in this city, on vaccine mandates, it’s been extraordinarily consistent. We have not been ever stopped from doing what we plan to do. It’s really, really clear. And unlike the federal government — we respect — I respect the Biden administration. I think they’ve done extraordinarily positive and helpful things in fighting COVID, but we did not choose a cutoff for the size of business.

Mayor-Elect Eric Adams, who takes office on January 1, 2022, has said that he will evaluate the new measure once he is mayor.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.