Hunton Employment & Labor Perspectives

On December 6, 2021, New York City Mayor Bill de Blasio surprised employers by announcing on MSNBC’s “Morning Joe” that, starting December 27, NYC will mandate vaccines for all private-sector workers.  The mandate is expected to affect around 184,000 employers.

In part, the mandate requires proof of two vaccine doses for workers who have received the Moderna or Pfizer vaccinations and, presumably (although the announcement did not provide such detail), proof of one dose for those vaccinated with Johnson & Johnson's single-dose vaccination.  At this point, there is no requirement for proof of a booster shot as well.

Notably, the NYC mandate will not allow employees to opt out of vaccination through regular testing.  This is a more aggressive approach than the proposed federal mandate for employers with 100 or more workers which would permit such an opt-out.

For employees, noncompliance with the vaccine mandate in the absence of an approved exemption results in unpaid leave.  However, penalties for businesses that do not enforce the mandate have not been disclosed, and many are skeptical with respect to how, and by which entity or agency, the mandate will be enforced.  The mandate has also been criticized for the lack of guidance provided during Monday’s announcement, but Mayor de Blasio has responded that guidelines should be released on December 15.

Acceptable proof of vaccination comes in a variety of forms.  Accordingly, employers should educate themselves with respect to the validity of such forms, and should anticipate, and prepare to address through updated policies and procedures, some limited employee falsification of proof of vaccination.  To a great extent, employers will have to rely on the “honor system” when it comes to vaccination proof.

There is a possibility that there could be legal action around the mandate before December 27 resulting in, at the very least, a temporary stay of the implementation of the mandate.  And as Mayor de Blasio’s last day in office is December 31, it remains to be seen what Mayor-elect Eric Adams will do with the mandate.  For now, a spokesperson for Mayor-elect Adams has stated 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."

Considering these factors, implementation of the NYC vaccination mandate is not guaranteed at this point, but Employers should prepare to comply with the mandate out of an abundance of caution, and should continue to monitor the status of the mandate, any guidance that may be released, and any legal challenges that may be pursued.