Mayor says NYC Health Commissioner has the Legal Right to Issue Mandates to Private Sector in a Public Health Emergency

By Yehudit Garmaise

After Mayor Bill de Blasio, in the last week, issued a slew of new vaccine mandates that apply to private schools and businesses, many New Yorkers are wondering whether he has the legal authority to do so.

Just five days ago, the mayor issued a vaccine mandate for employees of non-public schools to get their shots by Dec. 20. 

Yesterday, the mayor announced a requirement that goes into effect on Dec. 14: for children 5 to 11 to show proof of one shot before entering restaurants, fitness centers, and entertainment venues. 

The mayor also announced yesterday that, by Dec. 27, the city’s in-person employees of private businesses must get their first shot, and a weekly testing option is not on offer.

Who will enforce the mandates and the penalties that will be applied to noncompliant New Yorkers remain unclear and likely will remain so: at least until Dec. 15 when the mayor said he will publish guidelines for 184,000 small businesses in the city.

In addition, with Mayor de Blasio leaving office on Dec. 31, whether Mayor-elect Eric Adams will uphold New York City’s newest mandates is unclear, although last week, Adams said he would continue with the current mayor’s vaccination efforts. 

Yesterday on the mayor's press call, Corporation Counsel Georgia Pestana said that the city’s commissioner of health, Dave Chokshi, MD, who officially issues the vaccine mandates, has the authority to do so to protect the public health.

In court, Pestana said, the health commissioner’s authority to issue mandates “has been upheld time and again.”

Although on Nov. 18, a federal appeals court forced President Joe Biden to suspend enforcement of a vaccine mandate nationwide for businesses that employ at least 100 people, Pestana said that “the trouble that the Biden administration has run into in court doesn't really apply here.

“Those injunctions were issued because there are questions about the authority of the Occupational Safety and Health Administration, [which is a regulatory agency that inspects workplaces] and the Centers for Medicare and Medicaid Services, which is the agency that regulates Medicare and Medicaid providers authority, to issue the mandates that they did.

“Here, I don't believe there is any question that Dr. Chokshi has the authority to issue this mandate.”

“It's ‘the across-the-board’ nature of it that I think makes it defensible [in court].

The mayor also said that the mandates’ “universality is key,” meaning that the city is “not picking one industry over another and treating them differently.”

“We believe the right way to approach [vaccinating the city] is a clear, strong standard for everyone."

But what really seems to be the strength of City Hall’s argument, as to their legal authority to issue mandates to the private sector, is their claim that the city’s health commissioner “has to act when there is a health crisis.”

The mayor said that “three new factors are bearing down on us: a new variant, which appears to be very transmissible; cold weather, which we know unfortunately facilitates the spread of COVID because people are indoors; and the many, many holiday gatherings that will be happening, including family gatherings.

“Those three together: that's a triple threat,” Mayor de Blasio said. “That's a real cause for concern. Our health commissioner does have the legal right to say, ‘Here's something necessary to protect the health of all New Yorkers."

In the meantime, Gov. Kathy Hochul has confirmed that New York now has 12 patients who infected with the Omicron variant, and the Delta variant continues to drive a new increase in infections, as hospitals upstate once again are filling up.  

“The health commissioner has an obligation and a responsibility to protect the public health," the mayor said. "Here, he is issuing an order that is intended to do just that in a public health emergency. 

“We want to reach everyone who is not yet vaccinated, and this is a clear, strong standard that allows us to do that. [Dr. Chokshi] has the authority, and we're confident that this will survive any challenges.”

Today on “Inside City Hall,” the mayor told Errol Louis, “I've been sued, and the city's been sued on these issues already, but we've won every single time. 

“And that speaks volumes. 

“When it's a health commissioner's order, state and federal courts really fundamentally respect the right of health care authorities to recognize the extent of a problem and act accordingly.”

On WPIX later in the day, the mayor said, "The health commissioner is trying to save lives: that is what takes precedence."

Photo: Flickr