New Guidance for the New York City Private Employer COVID-19 Vaccine Mandate

On December 15, 2021, New York City issued guidance regarding the private employer COVID-19 vaccine mandate that will become effective on December 27, 2021 (the “Guidance”). As we previously reported, Mayor Bill de Blasio enacted a mandate that requires workers in New York City who go to work in-person or interact with the public to show proof that they have received at least one (1) dose of a COVID-19 vaccine by December 27, 2021. Any partially vaccinated workers then have forty-five (45) days to submit proof of full vaccination.

The Guidance includes the following: (1) the December 13, 2021 Order from the Commissioner of the New York City Department of Health and Mental Hygiene (the “Order”); (2) a set of Frequently Asked Questions (“FAQs”); (3) guidance and checklists on providing medical and religious accommodations to workers; and (4) anti-discrimination and anti-retaliation guidance on implementing the mandate.

Covered Entities

All businesses that employ one (1) or more workers in New York City or that maintain a workplace in New York City are required to comply with the vaccine mandate. The mandate also applies to self-employed individuals and sole practitioners who work at a workplace or interact with workers or the public in connection with their business.

As set forth in the Order, the mandate does not apply to “covered entities or individuals who are already subject to another Order of the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that is in effect and requires them to maintain or provide proof of full vaccination[.]” Significantly, this means that businesses covered by the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard, which as we previously reported is currently stayed, must comply with the City’s mandate.

Covered Workers

The vaccine mandate applies to all “workers” who work in-person in New York City at a “workplace,” which is defined by the Order as “any location, including a vehicle, where work is performed in the presence of another worker or member of the public.” The Order states that “workers” include all types of employees, volunteers, interns, independent contractors, self-employed individuals, and sole practitioners, with the following four (4) exceptions:

1. Individuals who work from home and whose employment does not involve interacting in-person with co-workers or members of the public;
2. Individuals who enter the workplace for a quick and limited purpose. While no definition of a “quick and limited purpose” is provided, the FAQs state that examples include using the bathroom, clocking-in and receiving an assignment before leaving to begin a solitary assignment, and making a delivery;
3. Non-New York City residents who are performing artists, athletes, or individuals accompanying such performing artists or athletes who do not have to display proof of vaccination pursuant to the Key to NYC Program; and
4. Individuals who have been granted a reasonable accommodation from the vaccine mandate for medical or religious reasons.

Recordkeeping Requirements

Employers must abide by one (1) of the following recordkeeping requirements:

1. Maintain a copy of each worker’s proof of vaccination or reasonable accommodation documentation;
2. Maintain a paper or electronic record that includes the following for each worker: (1) the worker’s name; (2) whether the worker is fully vaccinated; (3) for a worker who submits proof of receiving the first dose of a two-dose COVID-19 vaccine, the date by which proof of the second dose must be provided (which as noted above is no later than forty- five (45) days after proof of the first dose was provided); and (4) for a worker who is granted a reasonable accommodation from the vaccine mandate for medical or religious purposes, information regarding: (i) when the accommodation was granted; (ii) the basis for doing so; and (iii) any supporting documents provided by the worker for the reasonable accommodation; or
3. Check proof of vaccination before allowing a worker to enter the workplace and maintain a record of the verification.

For independent contractors, an employer may request that the independent contractor’s employer confirm proof of vaccination in lieu of maintaining the above records. If an employer chooses to use this option, a record of the request and confirmation from the independent contractor’s employer must be maintained.

The Guidance states that acceptable forms of proof of vaccination include any one of the following:

• New York State Excelsior Pass/Excelsior Pass Plus;
• A photo or hard copy of the worker’s CDC vaccination card;
• A New York City COVID-19 Safe App record;
• A CLEAR Health Pass;
• A photo or hard copy of an official vaccination record of a COVID-19 vaccine administered outside of the United States for the following vaccines: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac; or
• Other official immunization record.

Overall, all of the above vaccination information must be stored in a confidential and secure manner as required by law. The Guidance provides that this information should only be available to employees or other individuals who “have a legitimate need to access such information for purposes of compliance with this [O]rder, or other governmental orders, laws, or regulations.” According to the Guidance, covered entities must be prepared to make their records available for inspection.

Affirmation and Posting Requirements

By December 27, 2021, covered employers must complete the Affirmation of Compliance with Workplace Vaccination Requirements. This completed affirmation must be posted in a conspicuous location.

Reasonable Accommodations

Covered employers are required to consider reasonable accommodation requests from workers who cannot get vaccinated due to a sincerely held religious belief or a medical condition. These workers must apply for such accommodations by December 27, 2021 and may be permitted to continue coming into the workplace while their reasonable accommodation request is pending.  The Guidance is clear that personal, social, and political beliefs are not legitimate reasons to receive an exemption from the vaccination requirement.

Additionally, exemptions from the requirement to provide proof of vaccination must be made for workers who cannot provide such proof due to their status as a victim of domestic violence, sex offense(s), or stalking.

As noted above, the Guidance contains information regarding the accommodation process and checklists that employers may use to evaluate an exemption or accommodation request. All employers that use the checklists in connection with the accommodation process should maintain copies of the completed checklists for recordkeeping purposes. At the conclusion of the interactive dialogue process, employers must notify the worker in writing about the employer’s decision regarding the accommodation request.

The Guidance also contains the following examples of accommodations, which are not exhaustive, that an employer could institute for a worker that cannot comply with the vaccination requirement for medical or religious reasons:

• Weekly PCR testing for COVID-19 and wearing a mask at all times when not eating or drinking;
• Remote work;
• Change of work station or work schedule to avoid close contact with coworkers or customers; and/or
• Leave of absence, which can be unpaid unless the employer pays other workers who are unable to work for similar reasons.

Significantly, the Guidance states that employers do not have to grant accommodations that: (1) would cause a direct threat to other employees, customers, or to the worker requesting the accommodation or (2) would impose an undue hardship on the employer’s business.

The Guidance states that employers are prohibited from retaliating against employees due to their request for an accommodation. As described by the Guidance, employers should also ensure that their policies and practices regarding the vaccination mandate do not treat employees differently because of any protected characteristic.

Conclusion

Employers should review the Guidance immediately and speak with counsel to ensure compliance with the above requirements. The Guidance states that businesses that refuse to comply are subject to a fine of $1,000 and “escalating penalties thereafter if violations persist.”

The mandate is likely to be challenged in court, but the legal basis supporting the mandate is fundamentally different than the legal foundation underlying the federal vaccine mandates that have been stayed by the courts in the recent weeks. Therefore, the outcome of any legal challenge to the mandate is uncertain.

Notably, it is also unclear whether Mayor-Elect Eric Adams, who takes office on January 1, 2022, will keep the vaccine mandate in place. Mayor-Elect Adams stated that whether the mandate will remain in place is “about the science” and that he will have his team review the data once in office.