With the delta variant surging and the first day of school quickly approaching, New York City and state officials are turning to COVID-19 vaccine mandates.
Governor Kathy Hochul pledged this week to pursue mask and vaccine requirements for grade schools. Face coverings would be universally required in these school buildings, while staff would face either getting the shots or seeking tests on a regular basis.
The newly-appointed governor also hinted at broader vaccine mandates now that the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech shot. That approval automatically launched a vaccine mandate for college students in the State University of New York system, which former Gov. Andrew Cuomo issued back in May. The City University of New York followed suit on Monday, adding to a long list of public institutions and private companies in the tri-state area with these inoculation policies.
But after her inaugural proclamation, Hochul also said that she could not unilaterally require the COVID-19 vaccines for schools and beyond. She will need to work with lawmakers to develop these rules, and she has directed the New York State Department of Health to pursue the universal mask requirement for schools.
“I don't have the executive power to mandate vaccinations in schools,” Gov. Hochul told CBS This Morning on Wednesday. “But I'll be working closely to come to that conclusion by teaming up with our partners in the education community and our school superintendents and school boards.”
Yet in the same week, Mayor Bill de Blasio exercised his authority to issue a full vaccine mandate to public school staff, with no option for testing. Some workers are pushing back with protests and legal threats.
Alicia Ouellette, the dean and president of Albany Law School, sat down with WNYC’s Michael Hill to discuss the city and state's power to mandate vaccines and masks.
The Q&A below is an extended version of the interview heard Thursday on WNYC’s Morning Edition. It has been edited for clarity.
Hill: Governor Hochul says she alone does not have the executive power to mandate vaccines for teachers. Is that true?
Ouellette: Well, governor Hochul has indicated a willingness to pursue a kind of a mandate for vaccines for teachers that would require either a vaccine or a weekly testing regime. And she's indicated that she's going to work through the Department of Health to promulgate any kind of regulation in that regard.
Now, whether the governor of New York could issue such a mandate on her own is subject to question in New York because of the legislature’s rollback of executive power in the COVID 19 crisis that happened in 2021.
That’s when the legislature said to then-Governor Cuomo, you have to work with us. And we have to go back to the pre-pandemic balance of powers.
How is that different from last week when Cuomo required all hospital workers in the state to get vaccinated?
The distribution of power is still evolving. So, the governor acted unilaterally last week over health care workers. The power of the state, the executive branch and the Department of Health to regulate the healthcare arena is so very clear in the law and the authority of the state Department of Health.
But for a statewide vaccine mandate, the wisest course is to have buy-in from the legislature so that there's no question about the authority to do it.
That said, vaccine mandates have a long history in the United States. It has been upheld by the U.S. Supreme Court way back in 1905 [in Jacobson v. Massachusetts].
The exact mechanism to get from here to a statewide vaccine mandate in New York is yet to be determined because we have to see how exactly Governor Hochul will act.
Where does the governor's proposal for a school mask mandate fit in all this? Does she have the authority to do it?
So again, she won't be the one issuing it. She has directed the state Department of Health to institute mask mandates, and then she is going to use the available public health tools through the department to issue such a requirement.
There's something called the Public Health and Health Planning Council, which has authority over what's called the sanitary code. This council will work within the structure of the health department to issue a regulatory action as directed by the governor.
The Department of Health has very broad powers over emergency situations and can issue emergency regulations when it needs to protect public health.
I'm wondering if Mayor de Blasio's authority is different given the new vaccine mandate for teachers. He says he's not worried about a potential lawsuit from unions because there are no legal grounds for one. And he simply says that he can do it.
So, the mayor of New York city has full control over the city's public schools. And the mayor can exercise that control, and vaccine mandates have been upheld in the courts when they are necessary for the public.
The wrinkle comes with union contracts, right? The unions are going to argue that they have an agreement on the terms of employment, and we're seeing this in New York City.
Some of the unions are pushing back, saying we can only change the terms of employment through the mechanisms allowed in their contracts, like arbitration or through negotiations. How that all gets worked out is yet to be seen.
Some employers have also begun to require shots for workers. Barclays Center in Brooklyn, for example. Do private companies have the legal authority to mandate vaccines for workers?
Yes, they have that power. Private employers have the authority to regulate the terms of employment for their employees. And that includes safety precautions, and a vaccine mandate falls under that.
Now, private employers have to accommodate for health reasons, and they have to accommodate for religious reasons under various federal laws. But in general, yes, the authority of private employers to mandate vaccines is clear.
Almost the flip side of that coin is we've also heard about people pushing back against questions about their own vaccination status. Do workers have any recourse to say to a company, “No, I'm not going to give you information about my vaccination?”
Well, they can say no, but they may suffer employment consequences. We'll sometimes see employees say, “I'm not going to share this; this is protected by HIPAA [The Health Insurance Portability and Accountability Act of 1996].”
And that's just legally not correct. HIPAA doesn't apply to individuals, and an employer can ask the question about vaccine status and make it a condition of employment. And if an employee wants to not provide that information or chooses not to provide that information, then there may be consequences for the employee.
