Lawyers say NYC’s lifted vaccine mandate for athletes, performers poses legal liability

Mayor Eric Adams has put the city in a legal predicament by lifting the COVID-19 vaccine mandate for performers and athletes, while keeping it in place for all other private and public employees, lawyers said Thursday in reaction to the news. Backlash to the decision from the city's municipal workers’ unions was also swift, as was the outcry from some in the medical community. 

“#VaccinesWork … unless you’re rich and powerful, in which case, #LobbyingWorks. This mandate has always been about NYC employers. It had legal standing because (it) applied to all. The #KyrieCarveOut opens (the) City up to (an) entire scheme being voided by courts as ‘arbitrary and capricious,’” former COVID-19 adviser to Mayor Bill de Blasio Jay Varma tweeted, referencing lobbyists working on behalf of city sports teams with unvaccinated players.

City Council Speaker Adrienne Adams also expressed concerns about “the increasingly ambiguous messages that are being sent to New Yorkers about public health during this continuing pandemic,” she said in a statement. “This exemption sends the wrong message that higher-paid workers and celebrities are being valued as more important than our devoted civil servants, which I reject.”

Lawyer James Sullivan Jr., the former chairman of the federal government’s Occupational Health and Safety Review Commission who works as an attorney at Cozen O’Connor in Washington, echoed Varma’s “arbitrary” take. He explained that states and localities have been allowed to exercise their “police powers” in mandating vaccines, according to two Supreme Court rulings that found smallpox vaccine requirements were not in violation of the 14th Amendment, which guarantees due process and equal protection. Adams’ decision appears to defy this precedent, he said. 

“You can't exercise these police powers as a state in an arbitrary or unreasonable manner, because the 14th Amendment gives individuals the ability to challenge things on equal protection claims or substantive due process claims,” he told City & State, explaining that a city school teacher who was fired for refusing to be vaccinated, for example, could argue that the rule is not being equally enforced when the same “restriction has not been imposed on a city resident who happens to be a performer or an athlete, he said. “So it seems to be a bit arbitrary doesn’t it?”

Labor attorney Vincent White, of White, Hilferty & Albanese, said he expected the decision to “open the city up to a whole new round of litigation” that ultimately leads to the city lifting the mandate for most other employees, with the exception of health care workers and possibly teachers. In February, 1,400 city employees were fired for refusing to meet the city’s vaccination requirements. White said he has represented several city employees who have filed legal action requesting religious exemptions. In one of his cases involving a transit worker, an expert witness testified that unmasked basketball players and performers have an enhanced ability to spread the virus compared to many other professions, he said. 

“It’s actually been proven that their breath expels particles of the virus much, much further because of the activity they’re engaged in – singing or playing on a basketball court and breathing very hard,” White told City & State, noting that “it depends on the sport. If you’re playing baseball, you’re outside, there’s almost no risk of transmission.”

Ricki Roer, National Practice Chair of Wilson Elser's Employment & Labor Practice, said the “arbitrary and capricious standard is very difficult to meet” and that Adams could use “any arguably reasonable basis to defeat the challenge,” including the fact that athletes and actors “perform their duties at a safe distance from the public.”

“Bottom line, could be challenged, unclear if a challenge would be successful,” Roer said in a statement.

Adams, however, said that the decision was made out of fairness for New York City athletes and performers, since their unvaccinated, out-of-town counterparts are not under the jurisdiction of the city’s vaccine mandate and are therefore permitted to work here.

“This is about putting New York City-based performers on a level playing field,” Adams said Thursday while announcing the decision at CitiField. 

City employees who lost their jobs for refusing to be vaccinated will not be eligible to get their jobs back, Adams said.

But Sullivan Jr. said the city could easily enforce a vaccine mandate for out-of-town employees who visit the city for work, just as it did previously for patrons of restaurants and bars. “He could say ‘anybody who comes into this arena called Madison Square Garden must be vaccinated. Whether you're a performer or an attendee, or a vendor.’ That's rational, non-arbitrary, and within the state's police powers.”

In defending the decision, Adams said that it would affect only a small number of athletes and performers, most notably, unvaccinated Nets point guard Kyrie Irving.

In addressing a question from a reporter about the potential for new litigation, Adams said Thursday “I would not be standing here today if I did not speak to the attorneys and they said that this passes legal muster.”