Vaccine Mandate Loophole

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Brian Lehrer: Brian Lehrer on WNYC. Brooklyn Nets season opener is one week from today. It's in Milwaukee which means one of their biggest stars Kyrie Irving can play. So far that will not be the case for Kyrie for the Nets' first home game at Barclays Center if he continues to hold out on getting vaccinated under the key to New York City emergency executive order signed by Mayor de Blasio this summer. All patrons and employees of indoor entertainment and recreation venues are required to be vaccinated. That includes all the players on teams with New York or Brooklyn in their names if their home games are played in the city indoors.

Here's a weird exception. You know who's not required to be vaccinated at these indoor venues? Non-resident athletes or performers. That means for the Nets that being unvaccinated won't prevent the visiting team members from playing if they don't get vaccination shots, even while at sidelines, the home team player Kyrie Irving, the only Nets vaccine holdout, as far as we know.

That loophole is also how Joe Rogan, a celebrated vaccine skeptic, played at Madison Square Garden recently to an audience that had to be vaccinated to attend. I'm joined now by Christine Chung, Queens reporter for the news organization, The City and who is reporting on the Rogan Show resulted in State Senator Brad Hoylman introducing legislation to close that loophole. Hi, Christine, welcome back to WNYC.

Christine Chung: Hi, Brian, thank you so much for having me.

Brian Lehrer: Your beat is Queens, and it was from your coverage of the US Open that takes place there that you became aware of this carve-out for performers and athletic competitors, right?

Christine Chung: Yes. In the weekend prior to the US Open start. Mayor de Blasio, the mayor reversed a policy that basically didn't initially require spectators to be vaccinated. That kind of reversal prompted us at the city to take a closer look at the rules for the other indoor venues. That's how we found out that Joe Rogan, as you said, a very popular vaccine skeptic, would be performing at the 20k capacity Madison Square Garden, which did not require him to be vaccinated

Brian Lehrer: For a sport like tennis, of course, what they play at the US Open, in Queens, there are no home or visiting players. I guess the unequal effect wasn't a factor in the same way. They were still breathing in the sometimes in closed, Arthur Ashe stadium. Were there certain tennis players who refuse to get vaccinated?

Christine Chung: Actually, yes. Players did not need to be vaccinated as part of the tournament rules. I know one tennis player pretty notably said that he was not vaccinated and didn't plan to get vaccinated anytime soon. Stefanos Tsitsipas of Greece.

Brian Lehrer: Djokovic.

Christine Chung: Oh, right, yes.

Brian Lehrer: Did he get vaccinated? I know he had been a skeptic earlier on.

Christine Chung: I am not quite sure of his vaccination status. I don't think he's been completely transparent about it, other than saying that everyone has the right not to be vaccinated. Jury's out on that one.

Brian Lehrer: Right. I know people who were rooting against Djokovic making history with his possible US Open win which would have given him the rare Grand Slam of all four major tennis opens this year. I know people who were rooting against him because of the things that the anti-Vax statements that he's made in the past. Listeners, have you been attending indoor performances where you show your proof of vaccination to get in or going to indoor athletic events where you have to do that, too? Do you expect the folks on stage or on the court to be vaccinated, too, or are you okay with this exception?

Are you okay with the exception when it's only given to people who don't live in New York? 646-435-7280, 646-435-7280. Further, whether or not you're covered by the mandate depends on your employer rather than where you live to state it precisely. It's the fact that Kyrie Irving is a Brooklyn Net, and the fact that he himself lives in New Jersey in another state doesn't matter, right?

Christine Chung: Right. Basically, the exemption exists for professional athletes and performers. I'm sorry. The exemption exists for those who are out of town. Kyrie Irving, even though he does not live in New York City is still held to the city's mandate because of the fact that he represents a home team. The Nets in this example.

Brian Lehrer: The city's requirements are therefore the minimum. Organizations like the NBA or the Broadway League could Institute more stringent standards, or individual performance companies or whatever might, right?

Christine Chung: Right. The city's minimum for the indoor venues is only that people have one dose of the vaccine. Certain venues like the Barclays Center and Broadway have gone way past this, especially in the case of Broadway, which requires cast, crew, and audience to be fully vaccinated. Cast and crew, I believe, need to be tested once a week, even if they are vaccinated. That's much more than what's required at, let's say Madison Square Garden. At the Barclays Center, they've gone a little bit beyond the city's mandate by also requiring people to show proof of their identification in addition to their vaccine card or their Excelsior Pass.

Brian Lehrer: As I mentioned, State Senator Brad Hoylman has introduced legislation to close this loophole. He calls it discriminatory and says it's not based on science. What would change exactly?

Christine Chung: Manhattan State Senator Brad Hoylman introduced a bill last week that would essentially block the exemption for performers and athletes and their entourages. Under the city's rules right now, basically, anyone associated with the team or with the performers, such as Joe Rogan, can also be unvaccinated if they're coming from out of town.

His bill would essentially hold everyone to the same standard. That means that everyone would need to be vaccinated, not just the ones who are seeing the game, or seeing the performance, or the ones who live here in New York City. Hoylman believes that this essentially would just be an equalizer. He has stated that right now, this residency-based vaccine requirement essentially puts in the case of sports, local sports teams at a competitive disadvantage. Just last week, [unintelligible 00:07:17] Milwaukee Bucks played against the Nets. A unvaccinated player that they have, Bradley Beal was allowed to play. However, the Nets' guard Kyrie Irving was not allowed to play because of the fact that he isn't vaccinated.

Brian Lehrer: That's so weird. Where did that even come from?

Christine Chung: Sorry, where did what come from?

Brian Lehrer: That exception, that loophole that allows the visiting team players to be unvaccinated but not the home team players in New York. Who even thought that up to put that in the policy?

Christine Chung: Right. We have asked Mayor de Blasio about why this loophole exists. He stated that it is not a loophole. That the exemption essentially isn't, I guess, as consequential as it is for the rest of us to be mandated to be vaccinated because of the fact that out of towners are just in and out. They're not practicing here regularly, or they're not performing here regularly, I should say. That's been a justification for why this exemption continues to exist. Following the introduction of Brad Hoylman's bill, the city spokespeople did tell me that they would be reviewing the bill, but that they were incredibly proud of their vaccination mandate, which was actually the first in the nation to require proof of vaccine for indoor activities.

Brian Lehrer: Does this mean, for example, that Joe Rogan didn't have to be vaccinated to play Madison Square Garden even though the audience had to be, but Billy Joel would have to be vaccinated because for him playing Madison Square Garden is definitely a home game?

Christine Chung: That would be the case, yes, unless he had some major exemptions for his health or-

Brian Lehrer: Religion.

Christine Chung: -religious status, exactly, that I'm not aware of. That is what it means. A couple of weeks ago, I think two Fridays ago or so, Joe Rogan, played to an audience of about 20,000. That's the capacity for Madison Square Garden.

Brian Lehrer: Bruce, and-- Is Bruce ready to go? Bruce in Yonkers, you're on WNYC. Hi, Bruce.

Bruce: Hi. I just wanted to mention my daughter, who is in her mid-20s, vaccinated with the Johnson and Johnson vaccine loves to go to local rock concerts. This isn't big venue. This is small venue concerts. She loves standing in the front row between the speakers. She went to a concert recently where band members had not been vaccinated. The day after the concert, there was an announcement that they had tested positive for COVID, and my daughter wound up with a breakthrough infection.

Christine Chung: Oh, no.

Bruce: This is real.

Brian Lehrer: According to the rules, the band, if they were local, would have needed to be vaccinated to play that venue if it was in New York, Bruce, right?

Bruce: I beg your pardon, it was not in New York, it was in Illinois.

Brian Lehrer: Oh, there you go. That-- [crosstalk]

Bruce: I just wanted to point out the risks.

Brian Lehrer: The risks. Absolutely, thank you very much. Christine, that's exactly why the rule is for indoor venues and especially smaller indoor venues, I guess, that the vaccination requirement applies because aerosols is in a crowded small space.

Christine Chung: Exactly Brian. States across the nation have different policies for indoor venues, whether people do need to be vaccinated. I am aware that San Francisco and Los Angeles also have similar performer exemptions to what we are seeing here in New York City. I'm not sure what is happening in Illinois. That is differently the concern.

Brian Lehrer: Interesting. The Nets, I see, seem to have reached an understanding with the city for its practice venue, that's not Barclays Center, I'm not sure where it is, and that is that it's not covered by the executive order because it's in a private office building. I think you referred briefly to this before. Can you tell us more about that?

Christine Chung: Yes. Sports outlets like ESPN and The Athletic reported late last week that after weeks of not practicing with the team, Irving will be able to practice with the Nets at their home facility. I'm actually not quite sure where that is in the city. It's definitely in New York City. A spokesperson for the mayor confirmed to me that this is because the city's indoor mandates don't apply to private employers in their own workplaces. This means that players don't need a vaccine to practice, but that they definitely do to be able to play in front of a crowd.

Brian Lehrer: Why would there be an exemption for a private office building gym? A lot of gyms, regular gyms that regular people belong to who aren’t professional athletes are located in office buildings. What's exactly the rationale for that exemption?

Christine Chung: I guess the rationale for the exemption for this one is just that they're essentially categorizing the entire facility as an office including the gym.

Brian Lehrer: Interesting. Let's see. Joe in Westchester, you're on WNYC. Hi, Joe.

Joe: Hi, Brian. Good morning. If I was a basketball player, I would have wanted to be facing off against someone who is vaccinated even if I was vaccinated. It's a 48-minute game.

Brian Lehrer: Yes. They're obviously in each other's face. I think that hacking back to March of 2020, those bad old days, I think it was the NBA that shut down realizing that there were a few players with COVID on one team that really triggered the whole national shutdown of so many things. The NBA led the way for exactly that reason. Why wouldn't it be an NBA policy and not just a New York City policy, Christine, that players have to be vaccinated?

Christine Chung: I'm not sure why the NBA has chosen to, I guess, let cities set their own policies. I am aware of the fact that about 5% of NBA players aren’t vaccinated. I mentioned to Kyrie Irving and Bradley Beal. They're not encouraging the unvaccination. Players actually get penalized for each game that they miss, something like to the tune of tens of thousands of dollars for each game, I believe, depending on their contract. This over the course of the season could amount to a lot of money.

Brian Lehrer: I guess the changes to the policy could come from either direction. The city finds new carve-outs like for the Nets practice base or the loophole for visitors goes away.

Christine Chung: Yes, I think that's right, Brian.

Brian Lehrer: Let's take another call. Brigitte in Manhattan on this loophole for performers and athletes. Hi, Brigitte.

[background conversation]

Brian Lehrer: Oh, Brigitte, listen to your phone not the radio on delay. All right. We'll try to get back to Brigitte. Some NBA players and some co-hosts to the show argue that natural immunity should count as much as getting vaccinated and given that the mayor is only requiring people to have gotten one FDA or World Health Organization authorized dose. Are there discussions about allowing having recovered from COVID-19 to qualify?

Christine Chung: There haven't been discussions about natural immunity that I am aware of. Every time I've asked the mayor's office about this policy and whether it's up to [unintelligible 00:15:27] is that they are proud of this policy that it does enough. I'm not aware of conversations ongoing to change or revise this policy at this point. That being said, as I had stated earlier, different venues have gone about it with their own choices about how much deeper they will be, how much more strict they will be in terms of what they do enforce. Ultimately, it is up to people to make their own individual decisions. If Madison Square Garden or the Barclays Center don't require you to wear a mask, you can still wear one if you will want to.

Brian Lehrer: To be clear about the NBA policy, they don't necessarily require testing for all players in all venues as a league, vaccination for all players in all venues, they do require testing for unvaccinated players. What I'm seeing here is one test on practice or travel days, and at least one test on game days. They have to be tested day off if I'm reading this right. That should also protect the players and presumably the people in the stands as well. If you test negative the same day chances are slim that you have COVID or contagious COVID, right?

Christine Chung: Yes. I guess that is definitely a safeguard that's being put in place that is better than what the city has because there's no testing mandate under the case to New York City.

Brian Lehrer: As we run out of time, is the Brad Hoylman Bill closing this loophole likely to pass? The state legislature is officially in session until January, right?

Christine Chung: Right. There's no update yet about the Hoylman Bill. It's just been introduced last week. We'll see what happens in the coming months. I think what's important is that it's setting the conversation, it's starting the conversation, and we'll see what happens from here.

Brian Lehrer: We leave it there with Christine Chung, Queen's reporter for the news organization, The City. Thanks so much. Good to talk to you again.

Christine Chung: Thank you. It’s been a pleasure.

 

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