(This article originally appeared in The Hill)
Calling it a “pre-emptive strike” against the new omicron variant, the city’s mayor said that the new measure would apply to about 184,000 businesses, with employees who work in-person at private companies being required to have one dose of the vaccine by Dec. 27. Remote workers, certain religious groups and others with medical conditions will be exempt. And unlike President Biden’s vaccine mandates, there’s no alternative for weekly testing for employees who choose not to get vaccinated.
As you can imagine, the news did not go over well with the city’s small business community. Already faced with the highest minimum wage in the country and onerous rules dictating how they schedule, hire and train their employees (in addition to enforcing the city’s mask requirements and dealing with labor shortages and supply chain problems), this is yet another regulation that increases their costs at a time when many are struggling to recover from the pandemic. Small business owners are particularly vexed as the rule also requires anyone over the age of 12 who wants to go to a restaurant, gym or entertainment venue to show proof that they’ve received at least two doses of a vaccine.
My firm has a handful of clients located in New York City and a few have reached out to me for advice on how to deal with this new mandate. My answer: Ignore it.
Yes, that’s right. Ignore it. Ignore it not just because it’s a silly overreach by one of New York City’s worst mayors. Ignore it because it’s going to go away. How can I be so confident? For these significant reasons.
For starters, there’s no guidance right now. That’s because, according to the mayor, the city will issue its finalized rules by Dec. 14, a mere 13 days before the requirement goes into effect. No one, particularly small businesses in the midst of the holiday season, is ready for this. There will be many questions about the implementation of this rule — from who will enforce it to penalties for non-compliance. The amount of time given to prepare is not only unrealistic but could also be unlawful. Business owners should ask their fellow merchants on their street if they have time to deal with this nonsense and they’ll find what I’m finding: They don’t and they won’t.
And speaking of the law, the mandate is already being contested in the courts. Within a day of the announcement, the Supreme Court of New York suspended the mandate, with a hearing scheduled for Dec.14. No word yet on how long it will take after that date for a decision to be rendered and what impact that would have on a final implementation date.
Meanwhile, President Biden’s federal mandate is on hold while a federal appeals court evaluates its legality. If Biden’s mandate — which is much less onerous than de Blasio’s because employees have an option for weekly testing in lieu of vaccination — fails the test (a probable scenario according to many legal experts), then de Blasio’s much harsher rule could also be rejected, or at least delayed.
It is true that local authorities have more powers to protect their citizens’ public health than does the federal government. But many legal experts feel that de Blasio’s rule is an overreach. “Police powers granted to states to protect the overall welfare of their citizens have supported the use of vaccine mandates for more than a century,” attorney Tom Spiggle writes in Forbes. “But this doesn’t guarantee NYC’s coronavirus vaccine survives judicial review (or that other jurisdictions will be successful in enacting vaccine mandates).”
Another reason to ignore the mandate? De Blasio’s term will end just four days after the rule is scheduled to go into effect.
So far, incoming mayor Eric Adams is keeping his cards close to his chest about the mandate, saying through a spokesman that his administration will “evaluate this mandate and other Covid strategies when he is in office and make determinations based on science, efficacy and the advice of health professionals.” But Adams, who supports some mandates and opposes others, was elected to the position not only for his tougher stand on law and order but for his view that New York should “no longer be anti-business.” I think it’s a strong bet that he will either reverse or significantly water down de Blasio’s mandate.
Finally, the recent knee-jerk reaction to the omicron variant will soon be revealed as…well…knee-jerk. Despite the media’s attempts to draw more clicks by creating hysteria and irrational fears around the new variant, it seems that we may be over-blowing the threat.
Initial studies have found that the variant is weaker than the delta variant and that testing, vaccines and other therapies significantly reduce the risks of dying from COVID. “If Omicron turns out to be much milder than delta, as it appears, and overtakes it then that would signal the actual end of the pandemic and the evolution of SARS-CoV-2 into an endemic, far less dangerous pathogen.” writes Dr. Marc Siegel in the Wall Street Journal. “We need our normal lives back, and omicron may help us get there. The media is out for ratings, and politicians use fear to gain votes. If we give them neither we will find that fear begins to fade.”
So, sit tight, New York City small business owners. Ignore your mayor and ignore this mandate. The worst-case scenario is that Adams upholds the rule and you’re just a few weeks behind the 8-ball to get compliant, even if the city can figure out how to enforce it. But I don’t think this will happen. Go on with your business. Focus on your customers.