Letting Kyrie Irving Play in NYC Sends the Wrong Message on COVID Vaccination

New York City (NYC) on Dec. 13, 2021 enacted the broadest COVID-19 vaccine mandate of any large U.S. jurisdiction: all private sector employers based in the city must have their employees fully vaccinated whenever they work in-person in the city.

In the professional sports world, Brooklyn Nets and other basketball fans complained loudly when the mandate prevented unvaccinated star Kyrie Irving from playing in home games. Because NYC’s mandate only covers NYC-based employers and work conducted inside the city limits, he was, perversely, able to play in other cities, and unvaccinated players from other NBA teams were able to play in NYC. But with the impending start of the professional baseball season and reports that several players for the Yankees and Mets also remained unvaccinated, Mayor Eric Adams decided he did not want NYC sports teams at any competitive disadvantage and declared that the private sector mandate no longer applies to “live performers.”

I played a critical role in implementing the NYC’s vaccine policies when I led COVID-19 strategy for former mayor Bill de Blasio. This new exemption specifically jeopardizes what has, heretofore, been the nation’s strongest vaccine policies, increases NYC’s vulnerability to future COVID-19 surges and variants, and sends the wrong message to workers and states across the country.

The Legal Case

My first concern is legal. To impose a broad rule on the public, NYC must first provide “substantial evidence” and a consistent rationale for why the rule is necessary and to whom it applies. To date, the rationale for the private sector vaccine mandate has been that NYC has a significant need to have as many adults vaccinated against COVID-19 as possible, because:

• COVID-19 is an acute, ongoing public health threat

• One of the most critical components of that threat is over-running NYC hospitals, which are a limited resource shared by all New Yorkers

• Vaccinating adults is the most effective and durable tool to reduce demand on hospitals during surges by preventing COVID-19-related hospitalization and death

• Most adult New Yorkers are employed

• NYC has the legal authority to require NYC-based employers to vaccinate their employees

• Mandating COVID-19 vaccination for NYC-based employees will increase and maintain high levels of adult vaccination

By carving out an exemption for one group, Mayor Adams runs the risk of having the entire mandate invalidated by a court as “arbitrary and capricious.” This is a legal standard applied by judges in deciding when an administrative agency of government has unlawfully exceeded its authority. (For example, private groups unsuccessfully tried to make this argument after the NYC Health Department imposed a mandatory measles vaccination requirement on people in selected Brooklyn neighborhoods during an outbreak in 2019).

Plaintiffs could argue the government is selectively deciding which businesses to regulate based on those it favors, rather than based on public health, which is the stated rationale for the rule being imposed. If I were defending NYC — as I have in previous challenges to vaccination mandates for city workers — I would argue that the number of unvaccinated live performers is so small that it does not threaten the city’s public health and that NYC has a powerful interest in maintaining a live performance industry.

I fear, however, that courts will say other industries can make the same argument: that they are important and that the number of unvaccinated adults in their industry is also too small to impact health. The courts would then demand NYC choose to apply the rule to all or apply it to none.

Additional Arguments

My other concerns are ethical and political.

Immunization experts are always careful about adding vaccines to those commonly accepted for children or healthcare workers, because they are concerned the resulting backlash from those who oppose vaccines will imperil all vaccine requirements. We have seen that with COVID-19, as vaccination debates at the federal and state levels have led some state legislators to propose removing all childhood vaccine requirements.

A special exemption for performers similarly undermines trust in public health experts and vaccinations and could lead to a similar backlash in NYC. The public will rightly note the contradiction in government health experts saying “We’re all in this together, and everyone has to do their part” while simultaneously approving rules that exempt millionaire athletes and seemingly accept their unwarranted fears about the safety and efficacy of vaccines.

In fact, this is exactly what’s happening in NYC. Within days of the rule being announced, many powerful unions announced they will sue NYC, arguing that employees who were previously fired for refusing to be vaccinated should now get their jobs back and that all vaccine requirements for NYC government employees should be rescinded. The city’s legal defense against these lawsuits will be strong. Unlike athletes and other live performers, NYC government employees perform essential public services. NYC has a vested interest in keeping them healthy for duty to maintain these services and to minimize their risk of transmitting the infection to other employees and to citizens they interact with daily. Moreover, NYC pays for their health insurance.

Successful public health policies, however, rest not just on legal authority but also on moral authority – a sense that the policies are fair and just. Cries of double standards will resonate loudly and build political momentum to undo NYC COVID-19 vaccination policies. In fact, just this past Monday, the mayor started signaling publicly that he will re-consider COVID-19 vaccine mandates in NYC.

On a broader scale, relaxing the NYC mandate sets a poor example for other states with vaccine mandates and signals that it is OK to let our guard down. That’s a dangerous path to go down.

In just the past few weeks, we have seen how vulnerable the country remains. The BA.2 variant is now the most dominant strain in NYC and around the U.S., and cases are beginning to rise again, mirroring what happened in Europe. Removing vaccination requirements may help our city’s sports teams compete on the field, but it will also help the COVID-19 virus spread, threatening the health of the unvaccinated and vulnerable and further straining NYC’s hospitals.

Jay K. Varma, MD, is a physician, epidemiologist, professor of population health sciences, and director of the Cornell Center for Pandemic Prevention and Response. He is a former senior advisor on public health to former NYC mayor Bill de Blasio.