The updated guidance now states that NYC employers must comply with its vaccine order regardless of whether the OSHA vaccine order becomes effective. 

The guidance originally stated that “[c]overed entities or individuals who are subject to federal requirements that are not currently in effect because of a court order must comply with this order.”  The guidance has now been updated to read: “Covered entities or individuals who are covered by the OSHA rule that allows either employee vaccination or testing must comply with this order – their workers must be vaccinated if they do not have a reasonable accommodation.”  The City is taking this position even though the NYC Vaccine Executive Order itself states that it does not apply where a covered entity is already subject to another order, including an order of a “federal entity that is in effect and requires them to maintain or provide proof of full vaccination.” 

We now know that the Supreme Court will hold a hearing on the OSHA vaccine rule on January 7, 2022.  However, regardless of the outcome at the Supreme Court, covered NYC employers should actively be taking steps to come into compliance with the City Vaccine Executive Order as its proof of vaccination requirement goes into effect on December 27, 2021.  We summarize that NYC order in more detail here.