Businesses challenge New York City's COVID-19 vaccine mandate

A group of New York City businesses sued Mayor Bill de Blasio over an executive order signed this week that requires proof of Covid-19 vaccination from customers and employees of establishments including bars, restaurants, gyms and entertainment venues.

The businesses argue in the lawsuit that the mandate arbitrarily singles out certain types of businesses and provides no alternative for workers and customers who chose not to be vaccinated. The order “targets certain establishments but not others with no rationale whatsoever,” states the lawsuit, which was brought by the Independent Restaurant Owners Association Rescue and several restaurants and affected businesses.  

The businesses argue that those covered by the order are no more a risk for transmission of the coronavirus than other facilities not covered by the order.

Citing December reports from the New York governor’s office, the lawsuit notes that 1.4% of the state’s Covid-19 infections can be traced back to bars and restaurants. Meanwhile about 75% of infections stemmed from social gatherings held inside people’s homes.

Facilities including office buildings, senior centers and restaurants that only serve food outdoors or provide takeaway are exempt from the order. The lawsuit alleges that churches, hair salons, grocery stores and pharmacies are also excluded.

The vaccine mandate, which takes effect Sept. 13, does not provide an alternative option for individuals to provide proof of a recent negative Covid-19 test instead of proof of vaccination.

The U.S. Supreme Court upheld the authority of state and local governments to enforce compulsory vaccination laws in a 1905 ruling.

For the restaurants and businesses to successfully challenge New York’s mandate, they would have to convince the court that the city’s requirements are unreasonable, said Dorit Reiss, a professor at the University of California’s Hastings College of the Law who is researching legal and policy issues related to vaccines. That will likely be a difficult task, she said.

“Courts tend to be reluctant to second guess public health authority in times of uncertainty,” Reiss said.

Last week, the high court allowed Indiana University to require students to be vaccinated against the coronavirus, turning down a request for emergency relief from students who sued the school.

New York is engaged in a $10 million outreach campaign to educate businesses and residents about the mandate. Failure to comply with the mandate is punishable by fines of $1,000 to $5,000.

“Vaccination makes every activity safer, and this is a common-sense precaution to keep patrons of gyms, restaurants and indoor entertainment healthy,” said Health Commissioner Dr. Dave Chokshi in a statement announcing the mandate.

Other City Requirements 

A small number of cities, including San Francisco and New Orleans, have also announced vaccine mandates for concert halls, restaurants, gyms and other indoor entertainment venues.

In New Orleans, where the local economy is heavily dependent on tourism, city officials said they would shut down businesses on the spot if they do not comply with the mandate when it takes effect Monday. The order requires employees and customers to show either proof of vaccination or a negative Covid-19 test taken in the last three days in order to enter or work at certain types of businesses in the city.

San Francisco’s order, like New York’s, requires vaccination and does not provide the alternative for a negative test result.

Other cities have stayed out of the fray, allowing businesses to enact rules around vaccinations.

Cities that enforce vaccine mandates rather than leaving the decision up to businesses “will have broader application,” Reiss said.  

City-enacted mandates can help take the political pressure off businesses, but they create a difficult scenario for businesses that have to enforce and verify the vaccination status of customers and employees.

Government leaders could help businesses enforce the mandates by implementing a way for them to check and verify vaccine status, such as through the creation of a digital vaccine passport, Reiss said. Passports would also provide a way to document and verify allowable vaccine exemptions so that firms are not stuck trying to verify the information with customers.