Gertrude Warning: I’m vaxxed and boosted, and think everyone should be. What follows has nothing to do with whether getting vaccinated is a good thing or not, but whether New York City’s lame duck mayor, Bill de Blasio, can do what he just did.
New York City unveiled plans on Monday to require on-site employees at all private businesses, from bodegas to multinational banks, to get vaccinated — the most sweeping local mandate in the country and one that is intended to limit the spread of the new coronavirus variant this winter.
It’s one thing for a governmental entity to mandate that it’s own employees be vaccinated. It’s one thing for an employer to mandate that its own employees be vaccinated. It’s a different “one thing” for a city to mandate that businesses open to the general public require that entry be denied to anyone unvaccinated.
But it’s something entirely different for a government to mandate that a private business require its employees to be mandated. By what authority does the Mayor of New York City, or any mayor, or any governmental official, get to issue such a mandate?
The mandate, almost certain to face legal challenges and to pose difficulties for the employers tasked with enforcing it, will apply to about 184,000 businesses. It is set to take effect on Dec. 27, just days before Mayor Bill de Blasio leaves office.
While the vaccination rate in New York City appears to be doing pretty well, estimated at 90% according to the Times, that still leaves a lot of people unvaccinated. This is going to have some significant consequences for employers, particularly small businesses.
George DiGuido, the owner of N.Y.C. Pet, a pet store with several locations in Brooklyn, said he thought that the mandate could hurt small businesses.
“If you have a small company of five or six employees, and let’s say two or three of them haven’t been vaccinated, you’re practically out of business,” he said. “Because to find a new employee is extremely hard.”
And that’s just one variation on a theme that could play out in a great many ways. But even if you don’t care about George’s business survival because you hate puppies, how does BdB plan to make this happen?
He added that the rules could include penalties.
“It is part of life that there have to be some consequences,” he said.
So SWAT teams it is, and pity the poor puppies awoken by flashbangs. But what law empowers the mayor to issue such a mandate, and then penalize private businesses who fail to comply?
Mr. de Blasio said he was confident that the new mandate would defeat any legal challenges and noted that past city mandates had been upheld.
“They have won in court — state court, federal court — every single time,” the mayor said in an appearance on MSNBC.
Not to question the accuracy of anything asserted on MSNBC, but “confidence” isn’t actually the same as authority. Then again, courts have been particularly accommodating of mandates, which I suspect is a product of the huge number of deaths and judges tacitly mumbling “inter arma enim silent lēgēs.”
But this mandate is different. This mandate goes where no mandate has gone before. This mandate crosses a line by making private business subject to government control. You might love it or you might hate it, but how you feel about it has nothing to do with whether there is any authority for it.
And if it’s allowed this time, presumably under the guise of a health emergency, what other health emergencies will permit the government to control private business decisions? What other private business decisions will be subject to control under this emergency, since COVID is more deadly to people with co-morbidities such as obesity and hypertension, which is more prevalent for black employees? Can the mayor mandate that employers provide black employees with health club memberships, or that employers cannot require them to come to work and be exposed to the new variants, but must pay them anyway?
The city’s corporation counsel, Georgia M. Pestana, said that the city’s health commissioner clearly had the legal authority to issue a mandate to protect New Yorkers during a health crisis.
“Clearly” is what people say when they have nothing of substance to offer. Is there legal authority to do this, and if so, what are the consequences?
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