NYC released new vaccine requirements, by Order of the Commissioner of Health and Mental Hygiene, mandating all private sector workers to be vaccinated by December 27^th with at least 1 dose of any COVID-19 vaccine. A 2nd dose is required 45 days after a worker shows proof of vaccination for the Pfizer or Moderna vaccines.

The City’s new Order is its strictest yet. Businesses are prevented from allowing unvaccinated workers to enter the workplace. Further, businesses must verify and keep a record of each worker’s proof of vaccination by December 27^th. Records may consist of physical copies of worker’s proof of vaccination; a business-created paper or electronic record displaying worker’s name, vaccination status, and date by which they can provide proof of second vaccination; or a daily record verifying that the business checked the worker’s vaccination status before the worker entered the workplace. Businesses should be prepared to make their records available for inspection and need to set their protocol ASAP so that they comply.

The Order includes a path for vaccination exceptions if a worker seeks a reasonable accommodation for medical or religious reasons. If such an accommodation is sought, employers must record the reasonable accommodations, and supporting documentation relevant thereto, for each worker under 1 of the above record keeping options. Moreover, NYC employers must familiarize themselves with the Cooperative Dialogue or they will face failure-to-accommodate lawsuits by the drove. 

Also of note is that proof of vaccination applies to both employees and non-employee workers such as independent contractors.

The mandate does not apply to people who work alone; people who enter a workplace briefly for a limited purpose; and Non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them.

NYC provides a detailed memo explaining how businesses can properly comply with the guidelines.  Businesses are subject to fines of $1,000 for non-compliance, and escalating penalties thereafter if violations persist. NYC provides a link for those who wish to report fake proof of vaccination records in order to maintain compliance.

New York State's Department of Health issued new details for Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places effective December 13, 2021 until January 15, 2022 (State will re-evaluate after this date), for all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status. Indoor public places are any indoor space that is not a private residence. 

The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

For example, in a law office where everyone must show proof of vaccination to enter (employees, clients, vendors, etc.) masks are not required.  However, a retail store that does not require proof of vaccination to enter is required to ensure that all individuals present at the store (employees, customers, etc.) wear face coverings regardless of vaccination status.

Per the Department of Health, the following institutions must ensure everyone over the age of two, unless subject to applicable CDC exceptions, is masked (there is no proof of vaccination option): correctional facilities, detention centers, homeless shelters, transportation hubs, schools.

The new requirements are pursuant to New York State administrative rule 10 NYCRR 2.60.  A violation of any of these requirements is subject to a fine of $1,000 for each violation. Businesses should, thus, immediately ensure compliance or face potential crippling fines.

The ruling by a Georgia federal judge does not prevent employers or businesses from enforcing vaccine mandates. Rather, the Court issued a nationwide stay of President Biden's Executive Order which required all federal contractors to be fully vaccinated by January 18, 2021.

While the Judge expressed his understanding of the dangers of this public health crisis, he, nevertheless, issued the stay because he believed the Executive Order exceeds the President's authority. The Court further reasoned that the potential harm from enforcing a vaccine mandate on federal contractors (causing many federal contractors to breach their contracts when their employees refuse to get vaccinated) outweighs the harm to public health if the contractors are not vaccinated.

New York City Mayor de Blasio announced, through the media, new vaccine mandate requirements for New York City’s five boroughs.  Starting December 27^th all private-sector workers will be required to show proof of vaccination. This is the first vaccine mandate in the nation that applies to all private sector workers. Approximately 184,000 businesses will be affected. Mayor de Blasio called the new measures a “preemptive strike” in facing the new challenges associated with the Omicron variant, the colder weather affecting the delta variant, and holiday gatherings.

Additional measures include, requiring children ages 5-11 to show proof of one vaccine dose for indoor dining, fitness, and entertainment and requiring individuals 12 and older to show proof of two vaccine doses unless they received the Johnson & Johnson single vaccine dose. These measures are effective as of December 14th.

Mayor de Blasio called the measures universal in their enforcement and is confident that this expansion to “Key to NYC” Program will overcome any legal challenge.

Mayor de Blasio said the city’s health commissioner has put these new vaccine requirements into place. However, New York City’s Department of Health has not yet published the order detailing the requirements of the new mandate.

Issues involving the enforcement of these private-sector vaccine mandates will likely be something mayor-elect Eric Adams will have to deal with next year.

The 15 public school teachers who challenged New York City’s COVID-19 vaccine mandate live to fight another day in court.

The teachers have refused to comply with the City’s mandate arguing that compliance with the COVID-19 vaccine mandate is a violation of their religious rights under the First Amendment’s free exercise clause.

The Court determined that the reasonable accommodation standards in the City's vaccine mandate was unconstitutional as applied to the 15 teachers because the mandate required employees who requested a religious exemption to the COVID-19 vaccine mandate to submit a letter from a religious leader confirming the validity of the employee's religious beliefs. If the religious leader had well-documented public comments in support of taking the vaccine, the request for exemptions would be denied.

The Court reasoned as follows:

Denying an individual a religious accommodation based on someone else's publicly expressed religious views-even the leader of her faith-runs afoul of the Supreme Court's teaching that "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds."

However, the Court declined to extend protections against the mandate to all teachers stating that the mandate itself was "a reasonable exercise of the state's power to act to protect the public health."

Based on this decision, employers should only consider the employee's specific religious beliefs (in determining whether they are "sincerely held") when processing a reasonable accommodation request. Someone else's belief  - even if it is a religious leader - is irrelevant. 

Episode 208 of The Lieb Cast.

Stop complaining about governmental vaccine rules for where you work and where you go. Just live in the right place for you. We explain NYC's vaccine rules to participate in everything and Montana's new anti-discrimination law that prohibits changing opportunities based on vaccination status. 

Search "The Lieb Cast" on any podcast player. 

The United States District Court for the Southern District of Texas held that the Houston Methodist Hospital's policy requiring employees to be vaccinated against COVID-19, under the threat of termination, is lawful.

In Bridges et al. v. Houston Methodist Hospital et al., 117 hospital employees sued the hospital for "unlawfully forcing its employees to be injected with one of the currently-available vaccines or be fired." The plaintiffs alleged that they were wrongfully terminated and compared the vaccination requirement to "forced medical experimentation during the Holocaust."  

Citing to EEOC guidance (which is not binding) stating that employers can mandate COVID-19 vaccinations subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs, the Court dismissed plaintiffs' wrongful termination claim (Texas law only protects employees from being terminated for refusing to commit a criminal act). The Court also dismissed the plaintiffs' claims that requiring vaccinations is against public policy because the employees were not coerced to take the vaccine (clearly distinguishing a mandatory vaccination policy from plaintiffs' absurd example of forced injections in concentration camps). Rather, the hospital is trying to protect against a spread of COVID-19 and employees "can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else." The Court equated a mandatory vaccination policy to changing an employee's schedule or office location in the sense that "every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain." 

This is the first of likely many challenges to employer mandatory vaccination policies. Do you think permitting employers to implement mandatory vaccination policies is against public policy? If so, why?