“Key to NYC”: New York City Announces Vaccine Mandate Guidance

Anthony A. Mingione

New York City has issued the much-awaited guidance on its private-sector vaccine mandate. The mandate, which is scheduled to take effect on December 27, 2021, will apply to roughly 184,000 businesses in the City. There are several key takeaways from the guidance and accompanying FAQs.

Which Businesses Are Covered?

Any business that maintains or operates a workplace in New York City is covered. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.

What Must Employers Do to Comply?

Subject to the accommodation process described below, by December 27, 2021, employers must collect acceptable proof of at least one dose of COVID-19 vaccination from all individuals who perform services at New York City workplaces operated by the employer. This includes on-site independent contractors and nonresidents who work at New York City workplaces. (Workers who show proof of a first shot of a two-shot vaccine need to get their second dose within 45 days.)

The forms of acceptable proof have not changed. They include: a CDC COVID-19 vaccination record card or other official immunization record, New York City COVID Safe App showing a vaccination record, a New York State Excelsior Pass/Excelsior Pass Plus, or a CLEAR Health Pass. Accordingly, employers do not need to collect additional information from employees who have already provided proof of vaccination.

After December 27, 2021, businesses must exclude from the workplace any worker who has not provided proof of vaccination, unless an exception due to a religious or medical accommodation applies, or if the worker only ever enters the workplace for a “quick and limited purpose.” Examples of a “quick and limited purpose” include using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.

Employers can, but do not need to, terminate or otherwise discipline employees who refuse to comply, but they must bar noncompliant employees from the workplace until they are in compliance. Employers can also permit unvaccinated employees to continue to work remotely.

What Is the Accommodation Process?

Workers who have a sincerely held religious belief or a medical condition that prevents them from being vaccinated may apply for a reasonable accommodation. Accommodation seekers must apply by December 27, 2021. Employers may permit workers to continue coming into the workplace while accommodation requests are pending.

Employers may deny accommodations that impose an undue burden on the employer. Suggested accommodations include masking, regular testing, and remote work. Other and different accommodations will also be permitted.

Employers cannot, however, grant accommodations on political or philosophical grounds. The City’s guidance specifies various bases for vaccine refusal that will be per se insufficient to obtain an exemption.

These include:

      • A view that the government should not force people to get vaccines or interfere with medical decisions,
      • A belief that the COVID-19 vaccines are not safe or effective,
      • An opinion that COVID-19 is a hoax, and
      • A refusal to take the COVID-19 vaccine because it was developed using fetal cells that may have been the result of an abortion (unless the individual also refuses to take other medicines developed using fetal cells).

City agencies may review an employer’s reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately. The City has also provided specific guidance on how to handle reasonable accommodation requests, along with a checklist that employers can use to process reasonable accommodation requests (See, Guidance on Accommodations for Workers.) Following the City’s checklist, and keeping it on file, will be sufficient to demonstrate that the employer has handled accommodation requests appropriately.

What Records Must Employers Keep?

Employers must either (a) make a paper or electronic copy of each employee’s proof of vaccination, or (b) create their own paper or electronic vaccine record that includes for each worker: (i) the individual’s name and date of vaccination; or (ii) for a worker who submits proof of the first dose of a two-dose vaccine, the date by which proof of the second dose will be provided (which must be no later than 45 days after the proof of the first dose was submitted).

For independent contractors, businesses can comply by requesting that the contractor’s employer confirm that the contractor is vaccinated. In that event, the business must maintain a record of both its request and the confirmation.

Businesses must also keep records of all accommodations granted to employees who do not get vaccinated based on their religious belief or medical condition. These records must include the date on which the reasonable accommodation was granted, the basis for the accommodation, and any supporting documents provided regarding the accommodation. Employers should also keep copies of relevant documentation for any accommodation requests that are denied.

What Are the Posting Requirements?

The City has created a one-page attestation sign that businesses must complete and post in a conspicuous location in the workplace by December 27, 2021 (Affirmation of Compliance With Workplace Vaccination Requirements). The attestation sign affirms that the business is in compliance.

Do Special Rules Apply to Businesses with Multiple Locations?

Businesses with multiple location must post required notices in each location, but they can maintain vaccine records in one central location.

What Are the Penalties for Noncompliance?

Inspectors from various City agencies will begin enforcement on December 27, 2021. The failure to comply is punishable by a fine of $1,000. Penalties can escalate for repeat violators.

What’s Next?

As we noted in our recent coverage of the mandate, Eric Adams, who will be sworn in as New York City’s next mayor on January 1, 2021, has not committed to the mandate or the recent guidance. His team continues to maintain that Mr. Adams will evaluate the mandate and other COVID strategies once he takes office next month.

Employers should also note that the City’s new rules do not change the statewide requirements placed on businesses by New York’s HERO Act. (See, NY HERO Act Update—It’s Really Time to Comply.)

We will continue to monitor this developing situation and will provide the latest updates here. For other COVID developments, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.

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