Is NYC Private Sector Vaccine Mandate Legal? What to Know

The latest change takes effect on Dec. 27 and has sparked many questions. Top of mind for many employers and employees: Is it legal?

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New York City on Monday announced a first-in-the-nation vaccine mandate requiring COVID-19 inoculations for the entire private sector workforce, affecting 184,000 businesses and hundreds of thousands of employees.

There are no business size limitations; the rule is all-encompassing and necessary, Mayor Bill de Blasio says, as the one-time pandemic epicenter faces a triple threat from the emergence of omicron, the ongoing threat from the dangerous delta variant, which is driving up hospitalizations, and all that comes with the holidays.

It takes effect on Dec. 27 -- and employees will have to show proof of two COVID vaccine doses (or one Johnson & Johnson shot) in order to be in compliance. In other terms, employees have to be fully vaccinated or they can't be at their jobs.

While many questions remain about how the smallest private businesses can implement such a rule without the workforce size to accommodate gaps, what the consequences should be and how enforcement will work (more on those here), de Blasio's team faced one question, in particular, the day of the announcement.

How is this legal?

In early November, President Joe Biden's administration announced a sweeping vaccine-or-test mandate for all private employers with at least 100 employees that would take effect Jan. 4. U.S. appeals courts have blocked it so far, despite the administration's claim failure to implement it would cost many more American lives.

So why would the New York City order be any different, especially since that one doesn't even come with a test-out option?

According to de Blasio's corporation counselor, Georgia Pestana, there's at least one key difference between the two mandates apart from the testing element. It's about who is responsible for the implementation and enforcement of the mandate.

In one case, a court issued an injunction against Biden's mandate over questions about the legal authority of the Occupational Safety and Health Administration (OSHA) to manage it, Pestana said. In another case, an injunction was issued for similar reasons involving the Centers for Medicare & Medicaid Services (CMS).

New York City's mandate, Pestana and de Blasio point out, is coming from the health commissioner, who both say have a legal right to enact such orders when there is a significant threat, credibly perceived or otherwise, against public health. The around COVID and its ongoing spread illustrate that threat clearly, they say.

And both Pestana and de Blasio said city and state courts have continuously upheld that concept amid a number of challenges to the mayor's mandates these last few months. None, of course, have been as all-encompassing as this one, but the mayor and his corporation counsel believe the same premise will hold.

"Here, I don't believe there is any question that Dr. Chokshi has the authority to issue this mandate and it's the across-the-board nature of it that I think also makes it defensible," Pestana said Monday.

Learn more about how courts have ruled on vaccine mandates in the past here.

About 100 million workers fall under President Biden's new vaccine mandate because they work for companies that employ more than 100 people. But that mandate goes a lot farther than the federal government has gone before. NBC10's Mitch Blacher talked to a legal expert about the requirement.
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