NYC Takes Center Stage as the First City to Mandate COVID-19 Vaccination for Private Employers

As federal vaccine mandates are currently stayed pending the outcome of litigation in federal courts, on December 6, 2021 the outgoing New York City Mayor Bill de Blasio announced a first-in-the-nation COVID-19 vaccine mandate for private-sector workplaces. The mandate, which will take effect on December 27, will apply to roughly 184,000 businesses spread over the City’s five boroughs. With the December 27 deadline approaching, here’s what New York City employers need to know to get in compliance quickly.

What Are the General Requirements under the New York City COVID-19 Vaccine Mandate?

On December 13, the New York City health commissioner issued an order to require COVID-19 vaccination in the workplace, which was implemented by Mayor de Blasio’s Emergency Executive Order, and followed by additional guidance on the NYC COVID-19 Vaccine Workplace Requirement, a list of Frequently Asked Questions and a compliance checklist Flyer for Business Owners issued by the New York City Department of Health.

Beginning December 27, workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine. Workers then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines) by February 10, 2022.

Businesses must exclude from the workplace any worker who has not provided such proof of vaccination against COVID-19, unless an exemption due to a religious or medical accommodation applies, or a worker only ever enters the workplace for a quick and limited purpose (i.e., using the restroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment).

Which Businesses are Covered by the New York City Vaccine Mandate?

The New York City vaccine mandate is fairly broad and covers the following businesses:

• Any non-governmental entity that employs more than one worker in New York City.
• Any non-governmental entity that maintains or operates a workplace in New York City.
• Self-employed individuals or sole proprietors if they work at a workplace, or interact with other workers in-person, or interact with the public in-person in the course of their work.

What is Considered a Workplace?

A workplace is any location — including a vehicle — where work is performed in the presence of another worker, or a member of the public, including co-working spaces. By way of example, a rideshare driver’s vehicle would be considered a covered workplace while the rideshare operator is transporting members of the public throughout the city.

What Is a Worker?

A worker is a full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity. However, an individual who only ever enters the workplace for a quick and limited purpose, or a performing artist or athlete who is not required to be vaccinated per the Key to NYC program, is not considered a worker.

Does the New York City Vaccine Mandate Apply to Independent Contractors?

Yes. Businesses must either: (i) check proof of vaccination for each contract worker visiting the workplace, or (ii) request that the contractor’s employer confirm that the contractor is vaccinated. If businesses request that a contractor’s employer confirm proof of vaccination, businesses must then keep a log of these requests and the confirmations they receive.

How Can Workers Provide Proof of Vaccination?

Acceptable forms of proof of vaccination include:

• CDC Vaccination Card. A digital photo or photocopy of this card is also acceptable.
• New York City Vaccination Record or other official immunization record, including from your health care provider. A digital photo or photocopy of this card is also acceptable.
  • This includes a photo or hard copy of an official vaccination record of a vaccine administered outside the United States for one of the following vaccines: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.
• New York City COVID Safe App: Workers can upload to this app a photo of their CDC vaccination card or other official record, along with a photo ID.
• CLEAR Health Pass: Workers can use the digital vaccine card option in the CLEAR app if 18 and older and are fully vaccinated.
• Excelsior Pass (or Excelsior Pass Plus). To use this app, workers will need the phone number or email address associated with their New York vaccination record.

What are the Record-Keeping Requirements for Businesses?

Businesses must verify and maintain a record of each worker’s proof of the first dose of a COVID-19 vaccine by December 27 and proof of full vaccination in a two-dose series by February 10, 2022, or a record of a reasonable accommodation with supporting documentation. Verification includes viewing a form of identification, such as a passport or driver’s license.

There are three options for businesses to comply with this requirement:

1. Businesses can retain a copy or picture of the worker’s proof of vaccination OR a record of a reasonable accommodation with supporting documentation (which should include the date and the basis for granting the accommodation).
2. Businesses can create their own paper or electronic record that includes the following information for each worker:
   • Worker’s name
   • Whether the worker is fully vaccinated
   • For workers who submitted proof of the first dose of a two-dose vaccine, the date by which they can provide proof of a second dose, which must be no later than 45 days after submitting proof of the first dose
   • Record of reasonable accommodation with supporting documentation
3. Businesses may visually inspect each worker’s proof of vaccination before they enter the workplace each day. If a business elects to conduct a visual inspection of a worker’s proof of vaccination, the business must maintain a record of each verification.

Businesses should be prepared to make these records available for inspection. A business with multiple locations may store employee vaccination records in one central location, as well as reasonable accommodation records, if any, instead of having such records available at each location. Each business location should have contact information available to offer to City inspectors to put them in touch with the business representative who is centrally storing such records for the business.

To comply with ADA confidentiality requirements, all medical information about a particular employee (including COVID-19 vaccination documentation and reasonable accommodation documentation) should be stored separately from the employee's personnel file, and access to this information be limited to those who have a legitimate need to access such information for purposes of compliance with this order, or other governmental orders, laws or regulations.

Businesses do not need to keep a record of individual contractors’ vaccination status. If, however, businesses request that a contractor’s employer confirm proof of vaccination, businesses must then keep a log of these requests and the confirmations they receive.

What Types of Reasonable Accommodations Are Available?

The New York City Commissioner of Health has issued detailed guidance and a checklist to assist employers in respond to requests for accommodations. Workers who have a sincerely held religious belief or a medical condition that prevents them from being vaccinated against COVID-19 may apply for an exemption from the vaccine requirement as a reasonable accommodation. In addition, according to guidance issued by the New York City Commission on Human Rights, employers must also consider requests for reasonable accommodations from employees who need them because of pregnancy, childbirth, lactation or status as a victim of domestic violence, stalking, or sex offenses.

Under the New York City Human Rights Law, if an employee requests an exemption to a vaccine requirement or additional time to provide their proof of vaccination for one of these reasons, the employer must engage with them in a cooperative dialogue to determine if a reasonable accommodation is possible. Once the cooperative dialogue is complete, employers are required to memorialize in writing whether the accommodation has been granted or denied, and provide a copy of same to the employee. The New York City issued checklist can be used internally by human resources to document the company’s engagement in a “cooperative dialogue” with an employee requesting an accommodation.

Medical accommodations (permanent and temporary) are available for the following purposes, subject to medical verification from the worker’s treating healthcare provider:

• Worker had a severe allergic reaction (for example, anaphylaxis or angioedema) after a previous dose or to a component of all three approved COVID-19 vaccines (permanent accommodation).
• Worker has a known diagnosed allergy to a component in all three approved COVID-19 vaccines (permanent accommodation).
• Worker has presented medical documentation showing that they are within 90 days of monoclonal antibody or convalescent plasma treatment of COVID-19 (temporary accommodation).
• Worker has presented medical documentation showing they recently underwent stem cell transplant, CAR Tcell therapy, or other therapy or treatment that would temporarily interfere with the worker’s ability to respond adequately to vaccination, or mount an immune response due to treatment (temporary accommodation).
• Worker has Pericarditis or myocarditis (temporary accommodation).

Religious accommodations are available for sincerely held religious, moral or ethical beliefs objecting to COVID-19 vaccination. Accommodations are not available for requests based solely on personal, political or philosophical preferences or for general objections to government-mandated vaccines or concerns about the vaccines’ safety and efficacy.

Acceptable Accommodations include:

• Weekly PCR testing for COVID-19 and wearing a face covering at all times when not eating or drinking. Any eating or drinking must occur at least six feet away from others.
• Telework or remote work that does not expose others to the accommodated worker.
• Leave of Absence.

Things to keep in mind in managing accommodation requests:

• Workers must apply for a reasonable accommodation by Dec. 27, 2021.
• Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending.
• Employers may deny accommodation requests if the employer determines that the accommodation imposes an undue burden on the employer.
• Employers may deny accommodation requests if the employer determines that the unvaccinated worker would likely pose a direct threat to themselves or others.
• Employers are prohibited from retaliating against employees because they requested an accommodation.
• City agencies may review a covered entity’s reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately.

Are There Any Posting Requirements?

Yes. By December 27, businesses must complete, sign and post in a public place the Affirmation of Compliance with Workplace Vaccination Requirements issued by the New York City Department of Health (Affirmation of Compliance).

• If the business has multiple locations, the Affirmation of Compliance must be posted in each location. The Affirmation is available in multiple languages.
• If the business previously posted a notice per the “Key to NYC” requirements for restaurants, fitness centers, and entertainment venues, companies do not need to post the additional Affirmation of Compliance.

If self-employed individuals or sole-proprietors do not have a fixed workplace or their workplace is a vehicle, they may keep their own proof of vaccination with them at all times in lieu of posting the Affirmation of Compliance.

Do Employers have to Terminate a Worker who Refuses to Comply with the Vaccine Requirement?

According to the New York City Department of Health issued FAQs, as long as the business keeps the non-compliant worker out of the workplace, the business has the discretion to discipline or terminate the worker, or to keep the worker in a remote setting. 

What if the Business has Already Implemented a Mandatory COVID-19 Vaccination Policy?

If a business has already implemented a policy that requires all workers to be vaccinated against COVID-19, subject to applicable medical or religious accommodations required by law and has already collected proof of vaccination, the only thing left to do is post the Affirmation of Compliance in a public place. 

Businesses can adopt policies stricter than what is required under the New York City vaccine mandate, as long as the policies are not discriminatory or otherwise unlawful.

How will this Order be Enforced?

Inspectors from various city agencies will begin enforcing the order on December 27, 2021. All inspectors, no matter which agency they are from, will be inspecting for compliance with the same requirements.

If a business refuses to comply, they are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

What Are the Next Steps for New York City Employers?

1. Survey your workforce to verify and collect vaccination status and proof of vaccination (at least one dose of vaccine if a two-dose series) before December 27, 2021.
2. Prepare, implement, and distribute a mandatory COVID-19 vaccination policy, subject to accommodations required by law for all New York City covered workers and/or workplaces.
3. Follow up with employees (by or before December 23, 2021) who have not submitted proof of vaccination to determine whether an accommodation may be needed.
4. Confirm contractors will comply with the mandate by December 27, 2021
5. Sign and post the Affirmation of Compliance in all New York City locations by December 27, 2021.
6. Establish a process for human resources to manage accommodation requests
7. Monitor any updates to the workplace requirement, especially after Mayor-elect Eric Adams takes office on January 1, 2022.
8. Reach out to outside legal counsel for support and guidance on complex accommodation requests.