As employers vary on checking vax proof, NYC hopes for the best

Some employers aren't enforcing New York City’s COVID-19 vaccination mandate — and the Adams administration is relying on the honor system for compliance.

Under the mandate, which started Dec. 27, employers must seek each worker's proof of vaccination, maintain a log of who is and isn’t vaccinated, and “must exclude from the workplace any worker” who's unvaccinated, according to the city's order.

But according to groups representing businesses big and small, New York City — the only U.S. jurisdiction with such a vaccination requirement for the private sector — isn’t enforcing its mandate, which went into effect with days left in Bill de Blasio's mayoralty.

Last Thursday, Mayor Eric Adams authorized an exception for local professional athletes and performers, who until then hadn’t been allowed to work when in town if unvaccinated. For everyone else, the mandate, which covers any worker who interacts with the public or co-workers, remains in force.

Asked last week how he knows the mandate is actually being enforced, Adams told Newsday he’s calling on employers to comply and cooperate so workplaces can be safe.

“The name of the game is that we were not going to be heavy-handed with the private-sector mandate. We want to get people back into office spaces,” he said, adding: “We’re not going to run around the buildings and check vaccines cards.”

Nor is the city tracking how many workers have been fired from private-sector jobs for failure to get vaccinated, Adams said, explaining that the city doesn’t have enough "manpower" to collect that data, and besides, businesses aren’t required to report it: “Do you know how many companies we have in this city?”

Adams’ press office didn't answer emails seeking specifics of enforcement, if any.

Meanwhile, Francisco “Frank” Marte, founder and president of the Bodega and Small Business Group — a citywide association of bodegas, restaurants and barber shops — said the city isn’t coming into businesses to demand proof, and “most” of his members aren’t checking for it anyway.

“Nobody is enforcing that,” he said.

Businesses have had trouble finding workers and don’t want to be short-staffed, he said.

“Some of them, we really never forced them, or fired them, because they didn’t” provide vaccination proof, he said, adding: “It never worked for the bodegas. It never worked. It never worked because we really couldn’t do it, because if we have a good deli man, and we need him, what we need is to make sure that he doesn't have the virus, but we cannot fire him, and we never did it.”

Kathy Wylde, head of the Partnership for New York City, which represents the city’s biggest employers, said Adams’ approach overall is a departure from the previous administration’s more aggressive efforts.

“The fire department, the health department, the building department, all their inspectors, under de Blasio, during the height of the pandemic, their inspectors were all out there driving small businesses and retail strips crazy," she said, "but I think Eric ended that process.”

Now, Wylde said, she knows of no enforcement of the private-sector mandate, such as checking vaccination logs: Adams is “using carrot rather than stick,” not being “punitive.”

When de Blasio announced the private-sector mandate Dec. 6, he said it would apply to roughly 184,000 businesses, and anyone who works there, even those who live outside the five boroughs.

In 2020, before government-imposed shutdowns, about 315,000 Long Islanders commuted to city jobs, according to the Department of City Planning, which estimated that about 225,100 were from Nassau and 89,300 from Suffolk. Recent figures weren’t available. 

“The government mandates have given the employers cover to do what they probably would have done anyhow in terms of vaccinations, which is require that people coming into the workplace are fully vaccinated,” Wylde said, adding that most employees want to work in a place where co-workers are also vaccinated.

And many companies, particularly big ones, threatened to fire unvaccinated workers. The city, which also requires its 370,000 workers to be vaccinated, in February fired nearly 1,500 who refused.

On Tuesday morning, hundreds rallied in Queens to urge Adams to rehire, and compensate, those fired, and to rescind all mandates.

“You inherited these mandates. We get it. You can step up and be the hero that we know you can be and end it. So end these mandates now," said Michael Kane, 43, of Wantagh, a schoolteacher and rally organizer. 

In the private sector, some workers were fired, though there's no central tally of how many.

Lawrence Gostin, a Georgetown Law professor and director of the World Health Organization Collaborating Center on National & Global Health Law, said the city’s approach suggests “they’re not serious about it.”

“This just suggests to me that the city doesn’t have the political will to enforce it,” and, he said, “it’s just kind of setting it as a norm, a moral value, but not really as a binding legal regulation.”

He contrasted the city's approach with the Biden administration's plan for its nationwide vaccine-or-test mandate for the private sector, before the U.S. Supreme Court in January blocked enforcement: require businesses to report compliance, conduct spot checks, allow whistleblowers to report lack of compliance, and levy penalties and fines.

“There’s an easy way to enforce it,” Gostin said of such mandates. 

Adams has rolled back several of de Blasio’s COVID-19 mandates, including Key2NYC, under which only people who are vaccinated were allowed in venues like gyms, restaurants, stadiums, and theaters, as well as a mandate that students and workers in public schools be masked.

Several of the rollbacks by Adams have been opposed by Dr. Jay Varma, de Blasio’s top pandemic adviser in 2020 and last year. Most recently, Varma opposed the vaccine exception for performers and athletes.

On Twitter, he called it the “#KyrieCarveOut,” a flick to Brooklyn Nets star Kyrie Irving, who's unvaccinated and had been forbidden from playing in the team's home games.

“My assumption had been that, again, based on the mayor’s public statements, that they were not likely to enforce it early in their administration, but my hope had been, of course, that eventually they would,” Varma said, adding: “Now, of course, with there being a special exemption being placed for live performers … it would seem to me that they’re less likely to seek enforcement right now, especially if they try to adjudicate the legal and political tumult that has resulted from this most recent announcement.”

On Sunday night, Irving got a rousing ovation as he made his season debut at Barclays Center, where he had been banned from playing until Adams’ policy reversal.

The team lost to the Hornets, 119-110.

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.