Dive Brief:

• Private-sector workers in New York City will be required to get vaccinated against COVID-19, per a new mandate announced Monday by Mayor Bill de Blasio.
• In a statement, the Office of the Mayor said that the mandate, which will take effect Dec. 27, would apply to some 184,000 businesses. It expands the city's "Key to NYC" program, which previously required employees and customers at indoor dining, indoor fitness and indoor entertainment locations as well as other meeting spaces to be vaccinated against COVID-19. It also now requires children aged 5 to 11 to show proof of vaccination to participate in indoor dining, fitness, entertainment and performance venues. 
• "New York City has led the nation when it comes to decisive action on COVID-19," Dr. Dave A. Chokshi, the city's health commissioner, said in a statement. "We have to be more relentless than the virus, and I know that our vaccine policies will save lives and help prevent unnecessary suffering."

Dive Insight:

Beyond its immediate impact on local employers, New York City's mandate may precipitate further legal battles within the federal court system assuming employers decide to challenge it, according to Ian Carleton Schaefer, chair of the New York employment and labor practice at Loeb & Loeb.

"As a result, you could see this go to the Second Circuit, which may reach a different result in the Fifth (or Sixth) Circuit Court of Appeals, thereby creating the inevitable circuit split requiring the Supreme Court to weigh in," Schaefer said in an email.

A group of restaurants have already sued the mayor for the original indoor dining mandate, claiming it doesn't provide accommodations to people who cannot get vaccinated and infringes on the First Amendment. Restaurants have also faced significant pushback from customers to enforce the mandate, with two-thirds of operators saying customers refused to dine in restaurants enforcing the mandate. 

Meanwhile, the Occupational Safety and Health Administration is challenging the stay placed on its Emergency Temporary Standard requiring employers nationwide with 100 or more employees to implement vaccine mandates. By Friday, parties to that case — which sits before the 6th U.S. Circuit Court of Appeals — must file their responses to motions requesting that the court modify, revoke or extend the stay on the ETS. Attorneys who previously spoke to HR Dive indicated that the circuit could rule on the stay order as soon as this weekend.

Both OSHA and its challengers, depending on which side loses the 6th Circuit case, are expected to appeal the highly anticipated decision to the U.S. Supreme Court, however.

As for New York City employers, the mayor's office indicated that the city would issue additional enforcement guidance on Dec. 15, plus "additional resources to support small businesses with implementation." Under its existing guidelines, the Key to NYC program defines proof of vaccination to include a CDC vaccination card, an NYC vaccination record or one of several digital options, including via the NYC COVID Safe App, CLEAR Health Pass or the Excelsior Pass.

Businesses already covered under Key to NYC prior to the order were required to place a poster in a publicly visible location, familiarize themselves with accepted vaccination proofs, develop written implementation plans that would be available for inspection and help staff get vaccinated.