Is New York City’s Vaccine Mandate for Private Employers Legal?

With the holiday season in full swing, New York City employers began their workweek taking in surprising news from the city’s outgoing mayor. On Dec. 6, Mayor Bill de Blasio announced several initiatives to expand New York City’s rules for vaccination against Covid-19, citing inevitable holiday get-togethers and the arrival of the omicron variant, with the expectation that its high rate of transmission will lead to a new spike in cases.

The mayor wants to avoid dramatic shutdowns as currently seen in Europe. The deadlines under his new initiatives come up quickly and it remains to be seen if legal challenges will follow. For now, be mindful that all private employers in New York City are likely to be impacted by this announcement and should begin to prepare for the mandate.

What Are the New Rules?

While details are mostly unknown for now, the mayor’s press release advises that, effective Dec. 27, the nation’s first municipal vaccine mandate will be imposed on private employers in New York City, affecting roughly 184,000 businesses and requiring that their employees receive at least one dose of a Covid-19 vaccine before the year’s end.

Formally, the mandate is an order (which will be posted here) issued by the City Health Commissioner on Dec. 6, but guidance regarding enforcement and implementation will not be available until Dec. 15, “well before” the mandate goes into effect 12 days later, according to Mayor de Blasio.

In a press conference, the mayor hinted that enforcement could come with penalties for non-compliance, and he said the mandate would apply to employees who work in-person with at least one other person, but not to fully remote workers. We also anticipate that the guidance will address an employee’s right to request reasonable accommodations in connection with the vaccine mandate based on a disability or sincerely held religious belief.

In addition, the mayor announced expansions to the city’s “Key to NYC” program. Effective Dec. 14, that initiative’s requirements that patrons of indoor dining, fitness, entertainment and meeting spaces have had at least one dose of a Covid-19 vaccine will newly apply to children aged 5 and older. In addition, rules previously issued for students aged 12 and older who participate in “high risk extracurricular activities” will also apply to children aged 5 to 11 as of Dec. 14.

Beginning Dec. 27, the Key to NYC rules will tighten, requiring members of the public who wish to patronize certain establishments in the city to be fully vaccinated. In other words, a single dose of a two-dose vaccine will not be enough to gain entry to indoor facilities covered by the Key to NYC initiative.