N.Y.C. to Mandate Vaccines for Employees at Private Businesses

Nelita Collins

New York City unveiled plans on Monday to require on-site employees at all private businesses, from bodegas to multinational banks, to get vaccinated — the most sweeping local mandate in the country and one that is intended to limit the spread of the new coronavirus variant this winter.

The mandate, almost certain to face legal challenges and to pose difficulties for the employers tasked with enforcing it, will apply to about 184,000 businesses. It is set to take effect on Dec. 27, just days before Mayor Bill de Blasio leaves office.

Mr. de Blasio described his action as a “pre-emptive strike” designed to stall another wave of virus cases amid rising concerns about the Omicron variant.

“This is the biggest crisis not only of our time, but in the history of New York City,” Mr. de Blasio said at a news conference. “We cannot let Covid back in the door again.”

New York City, once the epicenter of the pandemic, has taken an aggressive stance on mandates and currently requires vaccines for city workers and for employees and customers ages 12 and older at indoor restaurants, entertainment venues and gyms. Mr. de Blasio also announced plans to tighten those rules by requiring one dose of the vaccine for children ages 5 to 11 and two doses for most people ages 12 and up.

The next mayor, Eric Adams, who takes office on Jan. 1, will be responsible for enforcing the policy and has not said whether he supports a vaccine requirement for private employers, though he has been broadly supportive of Mr. de Blasio’s mandates for city workers and indoor dining.

Mr. Adams and Mr. de Blasio are political allies, and the mayor said he had spoken with Mr. Adams twice about the mandate in recent days. Mr. Adams will assess the measure once he is inaugurated, said Evan Thies, a spokesman for the incoming mayor.

“The mayor-elect 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,” Mr. Thies said.

Nearly 90 percent of adult New York City residents have received at least one dose of a vaccine, but cases have been rising quickly in recent weeks, driven primarily by the Delta variant. Daily case counts have more than doubled since early November, reaching 1,900 newly identified cases per day. Officials confirmed last week that the first cases of the Omicron variant had been detected in New York.

Unlike the vaccine mandate for municipal workers, where the city had the power to put employees on unpaid leave if they did not comply, the new measure involves tens of thousands of private employers without a clear enforcement apparatus. It comes a few days after Mr. de Blasio announced a vaccine mandate for employees at religious and private schools.

Mr. de Blasio said the city would offer exemptions for private employees with valid medical or religious reasons but did not say whether businesses could face fines or inspections if they failed to follow the new rules.

The city plans to release detailed guidelines about how officials should enforce the mandate by Dec. 15 after consulting with business leaders, Mr. de Blasio said. He added that the rules could include penalties.

“It is part of life that there have to be some consequences,” he said.

Some business leaders said they already had mandates in place to keep workers and customers safe. Others immediately raised concerns about how difficult the new mandate would be to implement and enforce.

“We were blindsided,” said Kathryn Wylde, the president of a prominent business group, the Partnership for New York City. “There’s no forewarning, no discussion, no idea about whether it’s legal or who he expects to enforce it.”

George DiGuido, the owner of N.Y.C. Pet, a pet store with several locations in Brooklyn, said he thought that the mandate could hurt small businesses.

“If you have a small company of five or six employees, and let’s say two or three of them haven’t been vaccinated, you’re practically out of business,” he said. “Because to find a new employee is extremely hard.”

The new measure, which requires employees to have received one dose of a vaccine by Dec. 27, only affects those who work in person. There is no testing option as an alternative.

The Biden administration tried to set a federal mandate for all large employers starting in January, but that measure is stalled in court. The Occupational Safety and Health Administration, or OSHA, issued an “emergency” rule last month requiring vaccinations or weekly testing for employees of companies with at least 100 workers.

Mr. de Blasio said he was confident that the new mandate would defeat any legal challenges and noted that past city mandates had been upheld.

“They have won in court — state court, federal court — every single time,” the mayor said in an appearance on MSNBC.

The city’s corporation counsel, Georgia M. Pestana, said that the city’s health commissioner clearly had the legal authority to issue a mandate to protect New Yorkers during a health crisis. Ms. Pestana argued that the legal questions over the Biden administration’s mandate were different, because they centered on whether OSHA had the authority to set the rules.

Lawrence O. Gostin, a professor of global health law at Georgetown University, applauded the mandate and agreed that the city had broad legal authority over public health, but he said the mandate could be vulnerable in court because it is so far-reaching.

“This is a large new step that has never been tested in the courts,” he said.

In New York, judges have mostly rejected legal challenges to various Covid-19 vaccine mandates set by the city and state. Much of the litigation has revolved around the issue of religious exemptions. City workers were allowed to apply for medical or religious exemptions from their mandate; about 1,400 such exemptions have been approved, and 1,700 have been denied.

Roughly half of Manhattan office employers have enacted vaccine mandates, and some policies include testing options and medical and religious exemptions, according to Ms. Wylde, the business leader.

The city’s rules for dining and entertainment are also changing: They will now apply to children ages 5 to 11, who must have one dose of a vaccine to enter restaurants and theaters starting on Dec. 14; adults will now be required to have two doses instead of one, starting on Dec. 27, except for those who initially received the one-shot Johnson & Johnson vaccine.

Some leaders in the restaurant industry argued that expanding the dining mandate to children would hurt businesses and asked the mayor to delay the change until next year.

“Public health and safety is paramount, but Mayor de Blasio’s announced expansions to the Key to NYC vaccine mandate pose additional challenges for an already beleaguered restaurant industry in need of tourism support and revenues this holiday season,” said Andrew Rigie, executive director of the NYC Hospitality Alliance.

Many questions remain about the Omicron variant. Some early signs exist that it may cause only mild illness, though that observation was based mainly on cases in South Africa among young people, who are generally less likely to become severely ill from Covid.

Scientists are also waiting to see whether cases lead to substantial hospitalizations and deaths; both are lagging indicators.

And at the moment, scientists say there is no reason to believe Omicron is impervious to existing vaccines, although they may turn out to be less protective to some unknown degree.

Business owners had plenty of questions on Monday about what the new mandate would mean for them.

Mr. DiGuido, who said his pet store employs about 25 people across its locations, estimated that about 90 percent of them were vaccinated.

He said he thought it would be “a little difficult” to compel the holdouts to get the shot. “I’m going to be forced to do it because there’s probably fines and all kinds of things that will follow this,” he said.

Charlie Fernandez, general manager of Harry’s Shoes on the Upper West Side of Manhattan, said that most store employees had already gotten vaccinated but one or two chose to get tested weekly instead. He questioned how the city would be able to monitor all the city’s private businesses.

“We can hopefully incorporate the mandate into our own policy,” he said.

Raaid Alsaidi, assistant manager of Beacon Hardware a few blocks south, said that all of his employees had chosen to get vaccinated, and that he expected most people who live in the city to already be vaccinated as well. “I don’t think it’s too much to ask,” Mr. Alsaidi said.

Sheikina Liverpool, a spokeswoman for Macy’s, said the company was reviewing the mandate. “We continue to strongly encourage all our colleagues to get vaccinated,” she said.

Gov. Kathy Hochul said on Monday that the mayor had called her before his announcement, but she did not say if she supported his move.

“I was aware of this, and I support the local government leaders to execute the policies to fight Covid as they believe will be most helpful to deal with this pandemic within their own jurisdictions,” she said.

Mr. Adams, who is on vacation in Ghana this week, has said that vaccine mandates for city workers and restaurants helped boost vaccination rates in the city. But he has said he would work more closely with unions than Mr. de Blasio has to encourage them to cooperate.

Mr. de Blasio, a Democrat, is considering a run for governor next year and could focus much of his campaign on his handling of the pandemic. Some critics have cast his recent focus on vaccine mandates as an effort to garner national attention — and to earn more appearances on cable news shows.

One such critic, Joe Borelli, a Republican City Council member from Staten Island, pledged to file a lawsuit.

“This is a desperate attempt to find relevance,” he said, “in an otherwise irrelevant gubernatorial race.”

Reporting was contributed by Grace Ashford, Precious Fondren, Joseph Goldstein, Patrick McGeehan and Ashley Wong.

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