Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Monday, December 6, 2021, New York City announced a first-in-the-nation vaccine mandate for private-sector employers, which must now require vaccinations for all employees who work in person in the city. The new Department of Health mandate, which will take effect on December 27, 2021, will extend vaccine requirements to roughly 184,000 New York City businesses.
What is the rationale for the new mandate?
In announcing the mandate, Mayor de Blasio said that the city is specifically responding to an ongoing rise in COVID-19 cases, attributed to colder weather, holiday travel and events, and the rise of the Omicron variant, which has been identified in individuals in the city. The mayor commented that “we’ve been to this movie before,” and “we are not going back to what happened in 2020.” The mandate seeks to protect the city’s economy by heading off potential business shutdowns and restrictions, reasoning that the best way to promote and preserve safe workplaces is through vaccination mandates.
Mayor de Blasio acknowledged that while “vaccination is the central weapon” against COVID-19, many employers are struggling to convince their employees to get vaccinated. The mayor stated that he hopes this new order from the Department of Health will relieve the pressure on employers by requiring vaccination for all employees working in the city and creating “a level playing field.”
What are the specific requirements?
All private employers, irrespective of size, must require every employee to have at least one dose of a COVID-19 vaccine on or before December 27, 2021 in order to be present in a city workplace. Based on Monday's announcement, we anticipate that unlike the currently-stayed OSHA Emergency Temporary Standard, there will be no “testing out” option for an employee who simply prefers not to be vaccinated, nor may employers permit use of a mask as an alternative to vaccination. Additional details will be provided through guidance to be released on December 15, 2021.
What’s the difference between this and other vaccination mandates, like the Key to NYC Pass or the federal mandates?
During September and October 2021, New York City implemented vaccine mandates for city workers and for employees and customers age 12 and up at indoor dining, entertainment and event venues and gyms, through the Key to NYC Pass. As part of the December 6 announcements, the city also updated the Key to NYC Pass. Starting December 14, children ages 5-11 must show proof of at least one vaccination dose in order to access covered venues. Starting December 27, individuals ages 12 and older will be required to show at least two vaccination doses, instead of one, except for the Johnson & Johnson vaccine, in order to access covered venues.
Separately, the federal government has attempted to mandate vaccination in workplaces for employers with 100 or more employees as well as for certain federal contractors and institutions that participate in the Medicare and Medicaid programs. However, the federal mandates have been stayed in whole or in part as the result of numerous litigations.1
The new mandate announced on December 6 builds on the Key to NYC Pass, as well as New York State requirements for healthcare providers and public workers, by applying a vaccination requirement to all private-sector employers in the city. New York City distinguishes its measure from the federal mandates by relying on a New York City health commissioner’s order in response to a public health emergency. At the December 6 announcement, the corporation counsel for the city, Georgia Pestana, stated:
The Health Commissioner has an obligation and a responsibility to protect the public health. Here, he is issuing an order that is intended to do just that in a public health emergency. He has the authority and it is across the board, so it’s not picking one industry over another and treating them differently. We’re confident that this will survive any challenges.
Can an employee obtain an exemption from this new mandate?
Federal, state and local law permit employees to request an exemption from the vaccination mandate if they have a valid medical or religious objection. In that case, their employer must determine through the “cooperative dialogue” process whether it can accommodate the employee’s request, and if so, what accommodation(s) it can provide to the employee.
Although the guidance on this new mandate is not yet published, it may resemble the current guidance for employers covered by the Key to NYC Pass. A portion of that guidance can be found here.2
Should the city provide similar guidance under the new mandate, unvaccinated employees would not be able to work in the office. Employers will therefore have to consider whether other accommodations are available to the employee, such as converting the position to indefinite remote work or placing the employee on an unpaid leave of absence, and whether those accommodations pose an undue hardship on the business.
If, on the other hand, testing is an acceptable accommodation for those who cannot be vaccinated, employers will need to address the logistics of who will pay for testing costs, how to address time spent in testing for non-exempt employees, and how to ensure that employees are tested on a regular schedule, as discussed here.
New York employers should also review the various leave of absence and time-off requirements that cover employees obtaining the vaccine for themselves or their children, as well as for employees who test positive for COVID-19.
Is there any penalty if an employer does not comply with this mandate?
Employers will know more when the city publishes its forthcoming guidance; however, it is anticipated that like other health commissioner orders, the mandate will establish penalties for employers that fail to comply. The Key to NYC Pass provides for a statutory penalty of $1,000 for the first violation, $2,000 for the second violation within a 12-month period and $5,000 for any subsequent violation within a 12-month period. The new mandate may adopt a similar penalty structure.
What type of proof should an employer collect from its employees?
Could this be overturned?
It is foreseeable that the new mandate will be challenged in court, as other mandates have been. The city has tried to head off these challenges by having the health commissioner issue the mandate in response to a declared public health emergency. However, we cannot predict how a New York court would respond to such challenges. The Second Circuit Court of Appeals recently upheld New York’s mandate for healthcare workers, which does not provide for religious exemptions.
Employers operating in New York City should assume that the mandate will take effect on December 27. Therefore, they should (1) promptly notify their workforce of this new directive so that employees who are not yet vaccinated can have adequate time to schedule their vaccinations before December 27, 2021; (2) watch for further guidance from the city on December 15, 2021; and, to the extent they have not already done so, (3) gather proof of vaccination from those employees who are already vaccinated, and prepare to store such proof consistently with other employee medical records; (4) review their cooperative dialogue policies to ensure any requests for accommodations will be handled according to internal policies and applicable law; and (5) prepare to publish internal policies about the vaccination mandate, and the process for employees to submit an accommodation request.
1 See, e.g., William J. Kim, Eric Compere, and Alka Ramchandani-Raj, Fifth Circuit Enjoins OSHA from Enforcing Mandatory Vaccination or Test Emergency Regulations, Littler ASAP (Nov. 13, 2021); David Gartenberg and Sherry Travers, CMS Vaccine Mandate Blocked Nationwide, Littler Insight (Dec. 2, 2021); Carroll Wright, David Goldstein, and Jim Paretti, Federal Contractor and Subcontractor Vaccine Mandate Temporarily Enjoined in Kentucky, Ohio, and Tennessee, Littler Insight (Dec. 1, 2021); Elizabeth A. Lalik and Lauren M. Bridenbaugh, Additional Pushback from Certain States on Governmental and Private Employer Vaccine Mandates, Littler ASAP (Nov. 22, 2021).
2 NOTE: This guidance was removed by the city in December 2021.