A lawsuit has been filed in federal court challenging New York City’s sweeping mandate requiring nearly all private-sector businesses to ban unvaccinated employees from the workplace, asserting that the city's attempt to control the coronavirus pandemic deprives tens of thousands of businesses from pursuing their livelihoods.
The lawsuit filed Tuesday contends businesses like Cornerstone Realty, a Staten Island real estate firm that is the only named plaintiff in the case, are being unduly forced to fire unvaccinated workers and asserts the city's vaccination edict lacks mechanisms for businesses to appeal.
“This case is not about vaccines, but about an employer’s right to be heard," the lawsuit states.
The edict was one of two-term Mayor Bill de Blasio's final acts before relinquishing his office at the end of the year. He set a Dec. 27 deadline for virtually all private sector businesses — roughly 184,000 businesses that employ hundreds of thousands of people — to require workers to show proof that they have received at least one dose of a COVID-19 vaccine. Businesses face fines of at least $1,000 for noncompliance.
The city's new mayor, Eric Adams, has been in his job for less than a week but must immediately confront myriad challenges posed by COVID-19, including the latest surge that has spiked the number of infections to record levels.
It remains to be seen how Adams will respond to those challenges and what measures put in place by his predecessor he might keep or jettison as he formulates his own pandemic policies. Before taking office, Adams affirmed his support for the vaccine mandate, as well as de Blasio's insistence on keeping schools open.
While acknowledging the turmoil the pandemic has wrought on small businesses, Adams made no mention of the mandate in his remarks during a visit Tuesday to a struggling small business in Manhattan, where he signed an executive order that he said would “slash red tape, reduce needless fines and penalties,” and would “bring relief to our heartbroken entrepreneurs.”
As the current mayor, Adams is named as a defendant, along with the Health Department and its commissioner, in the lawsuit filed Tuesday in U.S. District Court in Brooklyn — one of several legal challenges spawned by rules and policies government officials have put in place to help contain the virus.
A spokesperson for the city's Law Department, Nick Paolucci, said the mandate has been applied fairly and was confident that it would survive legal challenge.
“The responsibility of the health commissioner to protect the public doesn’t stop at the doors of a private workplace," Paolucci said in an email. “Mandating vaccinations for City workers and private sector workers who interact with others is key to our fight against Covid and furthering the City’s recovery.”
The lawsuit argues the city is violating the constitutional rights of business owners to make a living, and New York City has no authority under federal law to impose vaccine mandates on private-sector companies, although such requirements already exist for restaurants, bars, theaters, gyms and other indoor gathering places.
The lawsuit further argues many companies cannot take advantage of provisions in city rules that allow exemptions for companies letting employees work remotely.
“As the last two years of the COVID-19 pandemic has shown, remote work is impossible for Cornerstone Realty’s agents, who must be physically present to show or list properties. Businesses like Cornerstone Realty are similarly situated across New York City,” the lawsuit states.
The attorney for the plaintiffs, Louis Gelormino, hoped the lawsuit would fare better in federal court after other challenges resulted in a string of legal setbacks in state and local courts.
Gelormino said he would seek class-action status for the case, which was filed on behalf of all private sector employers in the city.
“The sad part is that scores of people have already lost their jobs because they have been fired or laid off,” Gelormino said.
The new rules cover private places where work is performed in the presence of another worker or a member of the public. That includes not only stores, but shared work spaces and taxis, according to the requirements.
Under the city’s new rules, many more private employers will have to verify and keep a record of each worker’s proof of COVID-19 vaccination. Workers who have received only one shot must get a second within 45 days. Companies must display a sign affirming they’re complying with the rule “in a conspicuous location,” under the city’s mandate.
Businesses aren’t required to discipline or fire non-compliant workers, but they must keep them out of the workplace. Workers seeking an accommodation on religious grounds can come to work while their request is pending.
Cornerstone Realty said it has 14 employees — some of whom, the suit states, have declined to provide vaccination records to the company or applied for medical or religious exemptions.