On August 3, 2021, New York City announced that beginning September 13, 2021, it will begin enforcing a new mandate requiring proof of COVID-19 vaccination for employees and patrons of restaurants, bars, indoor entertainment venues, and fitness centers. Covered businesses must post the Vaccination Required Poster for Businesses in a place that is clearly visible to individuals before entering the premises.
In response to the mandate, the Independent Restaurant Owners Association Rescue (IROAR), a group of 50 small businesses, filed a lawsuit seeking to permanently block the vaccine mandate. IROAR challenges the mandate as “arbitrary and capricious” because “unvaccinated and vaccinated individuals can both contract” COVID-19, and the mandate “targets certain establishments but not others,” including grocery stores, pharmacies, hair salons, churches, office buildings, and schools. IROAR also contests the mandate because it contains no exceptions or accommodations for sincerely held religious beliefs, disabilities, or individuals who previously recovered from COVID-19. Finally, IROAR claims that the mandate “infringes on people’s First Amendment right to freely practice their religion.”
Notably, on the same day that the lawsuit was filed, New York City issued guidance regarding the mandate, including accommodation requirements. Specifically, the guidance provides, in pertinent part, as follows:
- Reasonable accommodations must be provided to customers with disabilities who cannot show proof of vaccination, such as takeout or outdoor seating.
- Reasonable accommodations must be provided to employees who are unvaccinated due to disability, religious belief, pregnancy, or status as a victim of domestic violence, sex offenses, or stalking. Potential accommodations include working remotely or outdoors. Businesses can request documentation to support an employee’s need for an accommodation.
- Reasonable accommodations do not have to be provided that would cause an undue hardship or a direct threat to others.
The court is scheduled to hear oral argument on IROAR’s challenge on September 3, 2021. The lawsuit’s outcome could provide a roadmap for legal challenges to other jurisdictions’ vaccine mandates. Barclay Damon’s Hotels, Hospitality & Food Service Team and Labor & Employment Practice Area will continue to monitor the litigation and provide an updated legal alert after the court issues a decision.
If you have any questions regarding the content of this alert, please contact Ross Greenky, associate, at rgreenky@barclaydamon.com; Rob Thorpe, partner, at rthorpe@barclaydamon.com; Scott Rogoff, Hotels, Hospitality & Food Service Team leader, at srogoff@barclaydamon.com; Bob Heary, Labor & Employment Practice Area chair, at rheary@barclaydamon.com; or another member of the firm’s Hotels, Hospitality & Food Service Team or Labor & Employment Practice Area.
We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.