Days after New York City announced its first positive case of the Omicron variant, Mayor Bill DeBlasio announced a sweeping upcoming vaccine mandate for virtually all private employers in the City. According to DeBlasio, this “preemptive strike,” set to go into effect on December 27, represents the City’s effort to get out ahead of the double threat posed by the new, highly contagious variant, and the potential increased transmission brought on by holiday travel and gatherings. However, City Hall’s hurried response has left City businesses reeling as they try to quickly adapt to unclear requirements.

What we know

First, DeBlasio announced the latest expansion to the “Key to NYC” program, which has already notably required proof of vaccination for anyone entering indoor bars and restaurants, fitness facilities, and entertainment and performance venues. Starting on December 14, children aged 5-11 will be required to show proof of at least one vaccine dose to enter those businesses. On December 27, New Yorkers aged 12 and older will be required to show proof of two vaccine doses (excepting the Johnson & Johnson vaccine, which only requires one).

More impactful is the unprecedented vaccine mandate for private-sector workers. The City will publish guidance on December 15, but for now, businesses are scrambling to anticipate their obligations before the mandate takes effect on December 27.

Questions

Who is affected?

City Hall has said that the mandate “will apply to roughly 184,000 businesses.” Until more explicit guidance is released, we must assume that every business, from multinational conglomerates to single-person LLCs, is subject to the mandate. With some exceptions, anyone working in New York City will have to be vaccinated.

What does the mandate entail?

The December 6 announcement was frustratingly vague on this point. The public consensus has been that the mandate will require all covered employees to have received their first shot by December 27, but that is just speculation until the City releases its full guidance on December 15. Even if the consensus understanding of DeBlasio’s announcement is correct, we still do not know by when covered employees are expected to be “fully vaccinated.”

Is there any way to not be vaccinated?

Certain other mandates (such as the currently-stayed OSHA ETS) have allowed individuals who do not wish to be vaccinated to instead produce weekly negative COVID tests and/or remain masked at all times. The Key to NYC guidance, however, has already stated that “masking and/or testing are not a sufficient alternative to vaccination” when an individual is going to be “in regular contact with other employees or customers.” Accordingly, it is unlikely that anyone will be able to opt out of the mandate, absent having received an approved religious or medical exemption from their employer. Even then, in light of the Key to NYC guidance, masking and testing would be unacceptable accommodations—such individuals would have to be moved to non-public-facing positions or, if possible, remote work.

How will the mandate be enforced?

That’s still unclear. In all likelihood, the City will follow the standard set by the Department of Health with respect to healthcare facilities across the State and require self-reporting. However, it’s still unknown what fines or other penalties will be implemented to ensure compliance.

This is going to be stayed by a legal proceeding, right?

It’s true that mandates such as this one (like the NY DOH mandate applicable to healthcare workers or the White House’s executive order applicable to federal contractors and subcontractors) have typically faced legal challenges, which have, at least temporarily, stayed their implementation and enforcement. While we can expect an attempt at a challenge, it is impossible to say how a judge may rule on it.

Additionally, there is a possibility that New York’s Mayor-Elect Eric Adams will rescind the mandate once he assumes office on New Year’s Day. Adams has only said that he will “evaluate this mandate and other COVID strategies when he is in office and make determinations based on science, efficacy and the advice of health professionals.”

In either case, businesses are encouraged to proceed as though the mandate will go into effect unabated.

What should businesses do to prepare?

We have to assume that the mandate will be going into effect and will remain in effect starting on December 27. That means that businesses should a) inform employees of this mandate, b) inform them of the business’s intention to comply with the mandate by requiring that employees receive at least one vaccination before the December 27 deadline, and c) collect and maintain proof of vaccination and solicit and make determinations on requests for religious or medical accommodations. However the mandate may be enforced, it will certainly require that employers maintain these documents.

In the meantime, remain vigilant for the City’s December 15 guidance—we’ll be sure to post an update then.

DeBlasio’s Parthian Shots: What Businesses Need to Know