The City of New York Set to Become First in Nation to Impose COVID-19 Vaccine Mandate on Private Employers

The mandate will require that all covered employees receive at least the first dose of a two-dose vaccine series by December 27, 2021.  

During his December 6, 2021 press conference, the Mayor announced that the mandate will be issued by Order of New York City’s Commissioner of Health and Hygiene on December 15, 2021.  The Mayor also stated that his Office is working with relevant stakeholders throughout the local business community to develop guidance surrounding implementation of the mandate, which will also be made available on December 15, 2021.

Although the Mayor stated that the Order and accompanying guidance will not be published until December 15, 2021, he did reveal the following information:

1. Unlike some other vaccine mandates, there is no provision providing for testing as an alternative to the vaccine.
2. The mandate will allow employers to consider exemption requests from employees seeking medical and religious accommodations. 
3. Employees who work remotely will not be subject to the mandate.

Next Steps and Takeaways

• The Order and additional guidance regarding implementation are slated to be released on December 15, 2021 and the mandate is scheduled to go into effect beginning on December 27, 2021.  Penalties for employers who fail to comply with the mandate are currently unknown.  
•  All covered employers should consider taking the following steps in advance of December 27, 2021:
  • ​Develop a mandatory vaccine policy.  Employers who have already implemented a mandatory vaccine policy should be prepared to review and revise as necessary to comply with the City’s mandate. 
  • Develop a process for requesting and gathering proof of vaccination from employees.
  • Develop procedures to handle medical and religious exemption requests.  
• National employers who may also be subject to OSHA’s Emergency Temporary Standard (“ETS”), CMS’s Vaccine Mandate, or the Federal Contractor Vaccine Mandate should note that although pending legal challenges have prevented the implementation of these vaccine mandates, they should be prepared to comply with New York City’s mandate if they employ individuals in New York City.
• Finally, we anticipate that there will be legal challenges to this impending mandate.  We will monitor this situation closely and provide updates as they become available.  We note that legal challenges to similar COVID-19 mandates issued by the City of New York have survived initial challenges in state and federal courts that sought to prevent implementation.