Could cities now mandate vaccines for private employers?

A mandate announced this week would require all private employees in New York City to receive the COVID-19 vaccine in order to work.
Feature Vaccine Mandates Panel

In the ongoing debate about the merit of workplace COVID-19 vaccine mandates, you can now add this to the mix: On Monday, Dec. 6, New York City Mayor Bill de Blasio announced all New Yorkers will need to be vaccinated if they want to go to work.

A vaccine mandate for public sector workers was already put in place in New York City on Nov. 1, but the new mandate, set to take effect on Dec. 27, now extends to all private sector employees as well.

The mandate is the first of its kind, making New York the first U.S. city to mandate vaccines for private sector workers. The move is estimated to affect around 184,000 businesses.

“We in New York City have decided to use a preemptive strike,” de Blasio said in a statement. “We’ve got Omicron as a new factor, we’ve got the colder weather which is going to really create new challenges with the Delta variant, we’ve got holiday gatherings. Vaccine mandates are the one thing that breaks through.”

The mayor’s office plans to release a set of protocols on Dec. 15 providing further details about the mandate, such as enforcement and penalties for noncompliance.

The mandate comes as de Blasio prepares to leave office at the end of December. His successor, Eric Adams, will take office on Jan. 1 and has not yet said if he supports the new mandate, but he is a close ally of de Blasio and has previously supported de Blasio’s mandates for city workers and indoor dining.

The earlier mandate for public sector workers was initially met with vocal resistance, and some city employees even chose to leave their jobs. However, rates of vaccination rose in response to the policy, and many city workers who at first opted to be placed on unpaid leave eventually got the shot and returned to work.

President Biden announced a vaccine mandate in September that would require all private companies with 100 employees or more to make sure staff are either vaccinated or test negative for the disease every week. However, this nationwide policy to mandate vaccines for the private sector has so far been stalled by opposition in Congress and the courts.

The latest New York mandate on the private sector raises the question of whether similar local vaccine mandates could begin to pop up across the nation in cities and counties like Madison and Dane County, which so far have been leaders nationally in vaccine rates, but also have been more cautious about containing the spread of COVID-19 through extended mask requirements that previously were allowed to expire in other Wisconsin communities.

A legal analysis of the New York private sector mandate leaves a lot of room for interpretation.

Devjani Mishra, an employment lawyer at Littler Mendelson, called it a “first of its kind requirement in terms of covering all private employers.”

“The enforceability of this mandate rests on both the fact that the pandemic is a general public health emergency and the fact that the mandate will apply ‘across the board, not picking and choosing’ among industries,” she adds.

De Blasio said the mandate was “borrowing” from input he gleaned from “months and months” of conversations with the private sector, whose main concern was avoiding the “huge restrictions we had last year.” The mayor insisted that he heard from many business leaders that the best thing for them was for the government to set a single, universal standard.

So, what are the specific requirements of the New York order? According to analysis from Mishra and colleagues at Littler, “All private employers, irrespective of size, must require every employee to have at least one dose of a COVID-19 vaccine on or before Dec. 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.”

Much like how the Wisconsin legislature declared Gov. Tony Evers’ statewide mask mandate a breach of his powers, the Littler attorneys predict the latest New York City mandate will be challenged in court, as other mandates have been. The city has tried to head off these challenges, however, by having the health commissioner issue the mandate in response to a declared public health emergency.

And as with the Biden mandate on private employers with 100 or more workers, Littler recommends organizations should prepare as if the policies will go into effect as scheduled, despite the legal challenges currently facing them. This advice is applicable to Madison-area large employers who could still be subject to the Biden Administration requirements:

“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 [Jan. 4, 2022]; (2) gather proof of vaccination from those employees who are already vaccinated, and prepare to store such proof consistently with other employee medical records; (3) review their cooperative dialogue policies to ensure any requests for accommodations will be handled according to internal policies and applicable law; and (4) prepare to publish internal policies about the vaccination mandate, and the process for employees to submit an accommodation request.”

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