New York City announced a vaccination mandate Monday that requires the private sector workforce to show proof of vaccination against COVID-19, affecting 184,000 businesses and hundreds of thousands of employees.
There are no business size limitations. The rule is ubiquitous and necessary, said the city’s mayor, Bill de Blasio, as the epicenter of a single pandemic faces a triple threat with the new Omicron variant, the dangerous delta variant, and increased hospitalizations. All in the middle of the end of the year parties.
The new measure takes effect on Dec. 27, and employees will need to show proof of two doses of the COVID-19 vaccine, or one from Johnson & Johnson, to comply with the regulations. In other words, employees must be fully vaccinated or they cannot be at their jobs.
While many questions remain about how smaller private companies can implement such a rule without the size of the workforce to accommodate the gaps, what should be the consequences and how the application will work (more about this here), de Blasio’s team faced a question, in particular, on the day of the announcement.
Is this legal?
In early November, President Joe Biden’s administration announced a broad vaccination or testing mandate for all private employers with at least 100 employees that would take effect on January 4. The US appeals courts have blocked it so far, despite the administration saying it would cost many more American lives.
So why would the NYC order be any different, especially since that one doesn’t even come with a trial option?
According to de Blasio’s corporate counsel, Georgia Pestana, there is at least one key difference between the two terms other than the piece of evidence. It is about who is responsible for the implementation and fulfillment of the mandate.
In one case, a court issued an injunction against Biden’s mandate over questions about the Occupational Safety and Health Administration’s (OSHA) legal authority to administer it, Pestana said. In another case, a court order was issued for similar reasons involving the Centers for Medicare & Medicaid Services (CMS).
New York City’s mandate, Pestana and de Blasio point out, comes from the Health Commissioner, who say they have the legal right to enact such orders when there is a significant threat, credibly perceived or not, to public health. The surrounding COVID and its ongoing spread clearly illustrate that threat, they say.
And both Pestana and de Blasio said city and state courts have continually upheld that concept amid a series of challenges to the mayor’s terms in recent months. None, of course, have been as comprehensive as this one, but the mayor and his corporate attorney believe the same premise will hold.
“Here, I don’t think there is any doubt that Dr. Chokshi has the authority to issue this mandate and it is the general nature of it that I believe also makes it defensible,” Pestana said Monday.
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