New York City will soon roll out a vaccine mandate for all private sector employees, despite the series of legal setbacks that have befallen President Joe Biden’s attempt to do the same thing on the federal level.
Outgoing Mayor Bill de Blasio announced this week that the city would undertake what he described as a “bold” step to curb the spread of the coronavirus: forcing all adults who show up to work in person to provide proof of vaccination, without an option for regular testing instead.
The city’s health commissioner said the mandate will apply to roughly 184,000 businesses and will take effect on Dec. 27. That’s just days before de Blasio’s successor, Mayor-elect Eric Adams, is set to be sworn in. Adams has not yet said whether he will keep de Blasio’s vaccine mandate in place.
Biden announced a similarly structured vaccine mandate for private sector workers at companies with more than 100 employees in September, aiming to begin enforcing the rule in January.
BILL DE BLASIO ANNOUNCES VACCINE MANDATE FOR NYC PRIVATE SECTOR WORKERS
However, the 5th Circuit Court of Appeals ordered the Biden administration to stop the rollout of its national vaccine mandate temporarily, and the Occupational Safety and Health Administration, which authored the rule, has done so.
Lawrence Gostin, professor of global health law at Georgetown University, said de Blasio’s vaccine mandate is likely to fare better in court than Biden’s has.
“New York City's mandate is completely different from the Biden OSHA mandate,” Gostin told the Washington Examiner. “Public health powers reside in the cities and states, while the federal government only has very limited public health powers. Municipal public health powers are more likely to survive legal challenges.”
Challenges to Biden’s private sector vaccine mandate focused largely on whether OSHA, an agency within the Department of Labor, has the authority to implement a public health requirement.
Biden administration officials pushed to use OSHA’s emergency rule-making authority to require vaccines but have so far not convinced federal courts that the agency has the ability to do so.
More narrow vaccine requirements on specific industries have already gone into effect in New York.
A federal appeals court in late October upheld a vaccine mandate on healthcare workers after a group of doctors and nurses challenged it on the grounds that it did not include sufficient religious protections.
The same court also upheld New York City’s vaccine mandate for public school employees in November.
De Blasio has moved to extend that mandate to private school teachers as well, even at religious schools.
“I think the NYC private sector mandate will survive a judicial challenge,” Gostin said. “It has also mandated COVID-19 vaccines and implemented proof of vaccination systems, all of which the courts upheld.”
Gostin noted that de Blasio’s efforts to impose the private sector mandate through an order from his health commissioner could raise questions, however.
“The one vulnerability is that Mayor de Blasio acted unilaterally without the explicit authorization of the NY City Council,” Gostin said. “There has never before been a private sector vaccine mandate this sweeping, and the courts will have to consider whether that kind of mandate requires explicit agreement from the City Council.”
In addition to the vaccine requirements for employees of all private businesses, de Blasio said he would expand proof of vaccination rules to include children.
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Beginning next week, all children between the ages of 5 and 11 will have to show proof of at least one dose of a COVID-19 vaccine in order to enter places like restaurants and theaters. Adults and children 12 and older will have to show proof that they’ve received two doses.
New York City hospitality leaders expressed concerns about the new requirements, fearful that they could prevent families from eating out during a season that is already often difficult for restaurants to weather.
“I think that requiring proof of vaccination for 5- to 12-year-old children is unwise and could be struck down in the courts,” Gostin said of the expanded proof of vaccination requirement. “While the CDC recommends pediatric vaccines, they are still very new, and many parents strongly object. The courts will ask why such a new vaccine under an emergency use authorization only should be required.”