It’s been about three weeks since New York City began - at least, nominally - enforcing its new Key to NYC program. That’s our new mandate requiring proof of vaccination for indoor dining. I’ve eaten out several times since it started, and I think that’s given me some new insight into how this ordinance is going to work. I’m not nearly as skeptical of it as I was, and I hope that what I’m about to share helps convince some of the businesses that are hostile to the idea that it’s worth their effort to comply cheerfully.
I work for state government, and I’ve been doing a lot of field work lately in different parts of the city - Queens and Staten Island, to be specific. Staten Island, as I’m sure you’re aware, is somewhat more Republican than the rest of the city, so not surprisingly there’s a bit more resistance to the mandate. A few places I saw had desperate handwritten signs saying “Take Out Only”. One pizza parlor in Brooklyn turned its tables upside down. A Dunkin Donuts in Queens had a sign that apologized for being closed for indoor dining for the foreseeable future. I encountered outright defiance at a deli in Manhattan’s financial district when I showed my CDC card. I can’t remember the exact words but it was something like “I don’t care if you’re not vaccinated, I don’t believe in all that.” It’s not clear what the cashier hoped to gain by saying that. A few doors down, at a similar place, they were keeping their trays behind the counter, and when I asked for a tray, they asked to see my CDC card and took down my name and number “in case the health department came around.” A diner in Hell’s Kitchen had the dining section cordoned off, and checked my ID and CDC card (I have both on a lanyard) at a distance of about four feet. I very much doubt they were able to read either. More on that below.
In the month between when the order was announced and the beginning of enforcement, it seems there wasn’t a lot done to educate the general public. Whether that’s because of a lack of resources or because they genuinely didn’t know exactly how to educate people on it is anyone’s guess. There’s very little daylight between education and regulation. The best auditors I know are the ones who are able to teach regulated entities the how’s and why’s of compliance. I don’t know the extent to which venues were provided with education and guidance.
This was the week the pieces of the puzzle really came together for me. I’ll try to break down the various pieces, and do my best to put them together.
The first piece of the puzzle is who the mandate is directed at. Namely, customers. The sign that’s supposed to be posted on the door to every restaurant makes that clear: “New York City requires you to be vaccinated against Covid-19 to enter.” This is significant; the primary target of the regulation is the individuals, not businesses. The mandate requires businesses to post signs and check if you’re vaccinated. It doesn’t require businesses to verify, authenticate, examine, or analyze the proof that’s presented to them. The incident at Carmine’s provides a good example of what’s not required. Namely, businesses are not expected to police incoming patrons. They’re not expected to spot forgeries, for instance. Indeed the types of proof of vaccination and identity could include documents from so many different jurisdictions that it’s simply not possible to keep up. You’d have to develop some sort of point system similar to what’s used at the DMV to “score” various types of documents. There’s a similar scoring system for employment eligibility documents, where you have to prove identity and work eligibility. And in practice, when private businesses do attempt to “play cop” things can get bad pretty quickly. This is exactly what happened at Carmine’s when the waitress suspected that some of the CDC cards were fake, and given the racial aspects, it has eerie parallels with the George Floyd incident in 2020 - which began when a clerk suspected that a $20 bill was fake. Selective enforcement, profiling, and alert fatigue are all real issues - but they aren’t if we allow for the process to be something less demanding.
So what exactly is expected, if it’s not a rigorous verification? Answer: it’s a legal ritual that signifies that the incoming customer accepts the mandate. The proof of vaccination and identity are props in a ceremony. This appearance of rigor isn’t about end results, but about solemnity. It’s similar to what I do when I notarize stuff for people. In fact, I’ve notarized quite a lot of stuff for people over the past 18+ months. First, I notarized a lot of things online pursuant to New York’s executive order. Then when I got vaccinated and the executive order expired, I started notarizing things for people in my building. (You’ll be interested to know that notaries aren’t allowed to refuse to notarize things for unvaccinated people; good thing I had my booster). Here’s what happens when I notarize stuff. You give me your ID. I look at it. I check that it has your name on it, that it has someone’s photo, and that it indicates some sort of state, city, school, or country. What I don’t do - and what I’m not required to do - is do any sort of in-depth examination of whether you’ve presented me with something fake. Nor do I do a careful examination of your handwriting, against the signature on your ID. Handwriting changes over time, people injure their dominant hands, and handwriting analysis is a pretty hoaky pseudo-science anyway. When it comes to the document being notarized, I don’t check to see if you’re of sound mind (I’m not a psychologist) and when I’m administering an oath I have no way of knowing whether you actually believe what you’re signing your name to - I’m not a polygraph machine.I don’t do any of these things. That’s because it’s not about the genuineness of the documents that are presented; it’s the act of presenting the documents. Some of my friends who’ve worked as bouncers at bars describe a similar standard. It’s all about the act. These kinds of ceremonial acts are predicated on the idea of accepting whatever putative proof is presented - emphasizing the sanctity of the fragile web of trust that binds us together. Indeed, forgery wouldn’t be considered such a serious crime if rank and file officials like me were expected to catch fakes with ease - the system would be self-healing.
This may seem horrific to the people who expect at-the-door vaccination checks to screen people out. Even the most well-designed app can’t do that. Louisiana’s mobile driver’s license comes close - the “bouncer” scans the QR code and pulls up your name, photo, and vaccination status from an official state database. But even there, there’s a real risk of “deep fakes” - indeed, there have already been cases of anti-vax pharmacists entering fraudulent information in official immunization registries. That’s pretty much the perfect crime, once it’s been pulled off. The only way one could ever catch it would be to start taking random antibody titers of restaurant patrons. The only real value these sorts of upgrades have is to increase the solemnity of the ritual. Going back to the notary analogy, the QR codes and phone apps are similar to the fancy “seal” that some notaries (who aren’t me) like to use. New York stopped requiring seals a while ago. And we don’t even require stamps any more - the notary just needs to put their name, license number, county where they were qualified, and date of expiration of their commission.
It’s easy to dismiss all this as mere “verification theater.” Surely, with a deadly infectious disease, we should have something a bit more airtight? But the level of enforcement for that kind of system is a fool’s errand. It would require, among other things, thousands of undercover cops to present fake-fake-proof to people checking ID’s, just to “see if they’re on the ball.” I very much doubt that’s going to happen. As it is, we don’t have the manpower for that, because that sort of “secret shopper” thing is a pretty specialized skill set, and government workers have been retiring in droves. To its credit, the city appears to be pulling people from multiple municipal agencies to verify compliance, but the kind of compliance they’re looking for is exactly the kind of ritual described above: are the people doing the verification conveying sufficient solemnity and gravitas? If so, the venue gets its check mark. My guess is that it’s being incorporated into annual and semi-annual inspections done by various agencies as “one more thing to look for” as a way of reducing the marginal cost. That’s probably considered sufficient - and rightly so.
Viewing the process in this way should be good news for venues concerned about compliance with the mandate. And just because there isn’t an expectation of rigorous examination of documents doesn’t mean it’s not working. If it convinces a few more people to get vaccinated, it’s working. If it conveys seriousness, it’s working. If it causes infection rates to go down, it’s working. And if it survives as a banal ritual, that’s something I can live with. Venues are not being asked to play “cop”, they’re being asked to be notaries. Or wedding officiants. Take your pick.
And viewing the checking process as a ritual has some interesting corollaries. First and foremost, the solemnity of the ritual can be imbued with a deeper meaning. When you’re being asked to show your proof, pause for a moment to think of the hundreds of thousands of lives lost to this deadly disease, and if it hasn’t touched you, give thanks to whatever gods you believe in. Second, think of whatever follows - the nice meal, the movie, the concert - as a post-ritual celebration, following the formal ceremony when you enter the room. Third, consider tipping the “vaccine bouncer” on the way out. It’s customary to tip wedding officiants, bars typically have cover charges for exactly this reason, and this author accepts payment for his notarial services.
The process of having to check vaccination status need not be the burdensome policing task feared by many restaurant owners. It can be beautiful.