New York City Releases Detailed Requirements for Private Workers to Be Vaccinated

As discussed previously (here and here), beginning on December 27, 2021, any workers in New York City who “perform in-person work or interact with the public in the course of business” must provide proof to their employers that they have received at least one dose of a COVID-19 vaccine. Workers will then have 45 days (until February 10, 2022) to show proof of their second dose (for two-dose vaccines, with one J&J dose being full vaccination).  After December 27, employers may not allow any unvaccinated workers to come to their workplace.

As promised, New York City today released Guidance (an overview page with links which can be found here) detailing the requirements related to this COVID-19 vaccine mandate for private workers.  The documents within these links most densely packed with relevant information are the Order from the Commissioner of Health and Mental Hygiene (here) and FAQs for Covered Entities (here).  Below is a summary of the most critical information confirmed in the Guidance.

Who/What is Covered?

First, there must be a covered “worker,” meaning “an individual who works in-person in New York City at a workplace,” Order p. 5, with “workplace” defined as “any place where work is performed [in New York City] in the presence of another worker, or a member of the public.”  FAQs p. 3.  As a result, “[i]ndividuals who are self-employed or sole proprietors” are covered if, and only if, in New York City, “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.”  FAQs p. 3  “Worker does not include:  (i) an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public; [or] (ii) an individual who enters the workplace for a quick and limited purpose ….”  Order p. 5.  The FAQs state that unvaccinated workers may enter the workplace “for a quick and limited purpose.” The examples provided by the City for entry into the workplace by unvaccinated workers are “using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.”  FAQs p. 2.

If there is a “worker” covered by the mandate, the next question is who is responsible for enforcing and documenting the mandate.  Any non-governmental employer of “more than one worker in New York City is subject to the vaccination mandate, ” as “is any non-governmental entity that maintains or operates a workplace in New York City.”  FAQs p. 3.  The five examples of covered entities provided in the FAQs are a clothing store, a grocery stores, a taxicab or rideshare owner-operator such as a rideshare driver, a speech therapist who visits clients in their homes, and a writer who rents a desk in a shared workspace.  FAQs p. 3.

Where an entity and worker reside or are based does not matter.  What matters is whether the work is performed in the presence of another worker or member of the public in New York City.  FAQs p. 5.

Verification of Vaccination Status

Under the NYC vaccine mandate and guidance, employers must verify and keep a record of each employee’s proof of vaccination by December 27. The Order (at p. 3) provides three options for how businesses can meet this requirement:

1. An employee’s record can be a copy of their proof of vaccination or a record of a reasonable accommodation with supporting documentation. 
2. Businesses can create their own paper or electronic record that includes the following information for each employee:  (a) the employee’s name, (b) whether the employee is fully vaccinated, (c) for employees who submitted proof of the first dose of a two-dose vaccine, the date by which they can provide proof of a second dose (no later than 45 days after submitting proof of the first dose), and (d) a record of reasonable accommodation with supporting documentation, if applicable. 
3. Businesses may check each employee’s proof of vaccination before they enter the workplace each day and must keep a record of each verification.

Although the Order (at p.5) reserves the right of the Commissioner to specify “[a]ny other method … to demonstrate proof of vaccination,” acceptance of self-attestations of vaccination from workers is not currently specified in the guidance.

An entity who has a contractor visit its New York City workplace can either check the proof of vaccination of the contractor on each visit or instead request that the contractor’s employer confirm the contractor is vaccinated, while needing to keep a log of these requests and the confirmations received if the latter option is chosen.  FAQs p.5.

Affirmation of Compliance

Also by December 27, all employers will have to complete this affirmation certificate and post it in a “public place” in the workspace to show that they are in compliance.  Employers should also be prepared to make these records available for inspection.  The guidance confirms that any business that posted a notice in compliance with the Key to NYC program does not have to post this additional notice.

As such, and contrary to previous reports, employers will not need to submit proof of vaccination or compliance to the City Department of Health and Mental Health in order to comply with this mandate.

Reasonable Accommodations

Workers who assert that their religion or a medical condition prevents them from getting vaccinated must request a reasonable accommodation from the vaccine mandate by December 27, 2021 or else be excluded from in-person work.  FAQs p. 6.  If the request for a reasonable accommodation request is made by December 27, the worker is permitted to continue working in the workplace while their accommodation request is under review.  While the Order and FAQs are silent on conditions that must be imposed on the worker during this review period, because the Guidance for Public Accommodations on Equitable Implementation of COVID-19 Vaccine Requirements (“Accommodations Guidance” here) provides the example of “show[ing] proof of a recent negative COVID-19 test and wear[ing] a face covering while on the premises” as an example of a reasonable accommodation, doing so during the review period should suffice.  Accommodations Guidance No. 2.  Indeed, the NYC COVID-19 hotline confirmed for the authors of this alert that, if a worker appropriately requests a vaccine accommodation, that worker may enter the workplace during the review period so long as they wear a mask.

Businesses will need to keep record of any granted reasonable accommodations, which will need to include a “record of when you granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation.”  FAQs p. 2.  The City “may review a covered entity’s reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately.”   FAQs p. 6.  Notably, the Accommodations Guidance includes “checklists” for Accommodation for Medical and Religious Reasons, respectively, that point towards somewhat narrow determinations of when such accommodations must be granted; and the FAQs (at p. 6) state that, “[i]f an employer chooses to follow this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.”

Penalties and Enforcement

Employers must retain records of their employees’ vaccination status, as described above. These records should be made available for inspection by “[i]nspectors from various City agencies,” who will begin enforcing the vaccine mandate on December 27, 2021.  FAQs p. 6.

Penalties for noncompliance start at $1,000, and can escalate for repeat offenders.  FAQs p. 7.  The FAQs make it clear that businesses will need to  take several steps to collect and record vaccination, as well as post the above attestation information to be in compliance. 

In the event that an employer or individual suspects someone is trying to provide a fake proof of vaccination, it or they can — but are not required to — do any of the following: (1) call 311 or file a complaint online, (2) call 833-VAX-SCAM (833-829-7226), or (3) email STOPVAXFRAUD@health.ny.gov.  Guidance, Report a Fake Record.

Next Steps for Employers

To comply with this mandate, employers should begin preparing a vaccination policy if they do not already have one in place. They should also prepare a method to verify and record their employees’ vaccination status and requests for reasonable accommodations by December 27, 2021. In addition, employers should make sure to complete and post the required affirmation by December 27.

Seyfarth attorneys are available to provide guidance and assist businesses to comply with this mandate.