WC Pros on de Blasio’s Vaccine Mandate: Don’t Hold Your Breath

Nancy Grover

Sarasota, FL (WorkersCompensation.com) – New York may become the first city in the nation to implement a COVID-19 vaccine mandate for private businesses. That is, if Mayor Bill de Blasio has his way. But workers’ compensation stakeholders say the likelihood of that actually happening – at least, by that date – is probably slim.

As part of the “Key to NYC” program, de Blasio this week announced that private sector workers must be vaccinated by Dec. 27. His office estimated it would apply to 184,000 businesses. The mayor also announced the city will require vaccine proof for indoor dining, fitness and entertainment for everyone over the age of 5, starting Dec. 14, and all New Yorkers over age 12 will be required to have two vaccine doses, unless they have received the Johnson & Johnson single-dose vaccine.

Several workers’ compensation professionals pointed to recent court challenges to federal vaccine mandates in questioning the prospect of a city requirement. At least two federal mandates, one for federal contractors and the emergency temporary standard announced by OSHA, are currently on hold.

“The reason that President Biden issued the executive order mandating that OSHA develop the mandate was because there are a lot of legal scholars that don’t believe that the president has the authority to issue a mandate to the general public. That’s why the end around was to go to OSHA and allege it’s a workplace safety issue and for OSHA to issue the standard,” said Albert B. Randall, Jr. Esq., president of Franklin & Prokopik. “My thought, extending that same logic, is, well, if the president doesn’t have authority potentially to issue a mandate, what authority allows the mayor to issue a similar mandate as well.”

Randall and others predict there will be litigation on the NYC mandate. The outcome, they say may not be good for the city.

“This will succeed in making businesses operating in NYC keeping their workforces remote, if possible, so they don’t have to deal with the issue,” predicted Mark Walls, VP of Strategic Analysis and Communications at Safety National. “That will only continue to slow the economic recovery for the area.”

One other concern from the stakeholders is the Dec. 27 deadline for the mandate.

“To expect this to be implemented in such a short time period is not realistic,” Walls said.

“I’d be stunned beyond belief if it actually goes into effect on that date without being stayed by the court, pending further litigation,” Randall said. It’s “putting an extraordinary burden on employers during a very difficult time of year to be able to implement policies and effectuate policies while there are holidays, end-of-the-year issues for many companies.”

Randall said he would advise employers to be ready and start thinking about a policy “and taking some good faith steps toward it,” he said, “but at same time I’d also tell them I thought it unlikely to go into effect on that date.”

Other concerns about the mandate are some of the logistics, such as issues about disability and religious accommodations. There are also questions about whether there are adequate supplies available

One industry insider said the mandate may create a more divisive environment, as it further draws the line between the “vaccinated” and the “unvaccinated” populations.

“‘Camp one’ consists of people who believe vaccination is the best way to protect freedom and to end the pandemic, while those in ‘camp two’ say freedom is threatened by politicians that won’t let the pandemic end because it’s more about power than public health,” said Mark Pew, The Rx Professor. “What are the implications of New York City’s announcements? Those in camp one will comply, be vaccinated and continue to work and live in NYC. Those in camp two will move their homes and businesses to states like Florida, Texas and Georgia … from states like New York, Michigan and California. The philosophical and physical separation grows.”