NYC Private Employer COVID-19 Vaccine Mandate to Take Effect December 27, 2021

The New York City Commissioner of Health and Mental Hygiene has issued an order requiring all on-site workers of private New York City employers to be vaccinated against COVID-19. By December 27, 2021, such workers must submit proof that they have received at least one dose of a COVID-19 vaccine, or apply for a medical or religious accommodation regarding this vaccination requirement.

Below, we provide a brief overview of the requirements in this mandate.

Covered Entities

With limited exceptions, discussed below, the vaccine mandate requires all New York City employers that employ more than one worker in New York City to verify each on-site worker’s proof of vaccination. To do so, employers should keep a record of each worker’s proof of vaccination, which includes the following information:

1. The worker’s name;
2. Whether the worker is fully vaccinated; and
3. 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.

Employers should verify vaccination status with (1) a form of identification (such as a driver’s license, non-driver government ID, or passport); and (2) proof of vaccination.

Proof of vaccination may be demonstrated by the following:

• A photo or hard copy of their CDC vaccination card
• NYC COVID Safe App
• New York State Excelsior Pass
• CLEAR’s Digital Vaccine Card, CLEAR Health Pass
• Official vaccine record
• 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.

Employers must maintain these records in a confidential and secure manner, and separate from the employees’ personnel files.

Finally, New York City employers need to verify that their workers are vaccinated, regardless of where those workers live. Therefore, workers who live outside of New York City are still subject to the mandate when they enter workplaces in New York City.

Workers with One Dose of a Two-Dose Regimen

By December 27, 2021, workers are only required to have one dose of a two-dose regimen (the Moderna and Pfizer vaccines are two-dose regimens; the Johnson and Johnson vaccine is a one-dose regimen). Under the New York City vaccine mandate, such workers must submit proof of a second dose within 45 days of submitting proof of the first dose. The 45-day deadline is not from December 27, 2021; rather it is from the worker’s initial submission of proof of vaccination, whenever that occurs.

A worker who fails to get the second dose must be excluded from the workplace until they can display proof of vaccination for their second dose (unless an exception applies, see Exceptions below).

This does not mean that an employer must fire or discipline an unvaccinated worker. The vaccine mandate only requires that the employer exclude an unvaccinated or incompletely vaccinated worker from the workplace. Therefore, a worker who is not fully vaccinated may continue to work remotely for the employer.

Exceptions

The vaccine mandate includes exceptions for the following categories of workers:

• Reasonable Accommodations: Workers who are unable to be vaccinated for valid medical or religious reasons may be eligible for an exception to the vaccine mandate, as a reasonable accommodation. To be eligible, workers must apply for a reasonable accommodation by December 27, 2021. Employers may permit such workers who have submitted a timely reasonable accommodation request to enter the workplace while their request for a reasonable accommodation is pending. However, employers must ensure that they review and address reasonable accommodation requests promptly and appropriately. Employers should keep records of the entire reasonable accommodation interaction for any worker who submits a request and must keep records for any worker who is approved for a reasonable accommodation due to religious or medical reasons.
  • New York City has issued additional guidance on this reasonable accommodation process, including a sample checklist that employers may use to review employees’ reasonable accommodation requests. This guidance, including the sample checklist, is available here. While employers are not required to use the sample checklist, the sample checklist serves as a helpful guide, as it provides insight into circumstances which would likely be found to support a reasonable accommodation regarding the vaccination mandate.
• Contract Workers – An employer who hired a contract worker does not need to keep a record of the contract worker’s vaccination status and can instead request that the contractor’s employer confirm that the contractor is vaccinated. An employer must maintain a record of both the request and the confirmation.
• Artists and Athletes – Non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them are not required to be vaccinated.
• Quick and Limited Purpose – Workers who enter the workplace for a quick and limited purpose (e. using the bathroom, making a delivery) do not need to show proof of vaccination.
• No In-Person Contact – Workers who do not have in-person contact with co-workers or others in the course of their business do not require proof of vaccination.

Required Signage

By December 27, 2021, businesses must complete this certificate affirming that they are in compliance with the vaccine mandate. They must post the certificate in a public place. Employers who previously posted a notice per the “Key to NYC” requirements for restaurants, fitness centers, and entertainment venues do not need to post this certificate. Employers without a fixed workplace may keep their own proof of vaccination with them in lieu of posting the certificate.

Penalties for Non-Compliance

Beginning December 27, 2021, Employers must exclude from the workplace any unvaccinated worker who enters the workplace, subject to the limited exceptions noted above.

New York City has stated that its preference is to ensure compliance while avoiding fines and penalties. Nonetheless, businesses that refuse to comply are subject to an initial fine of $1,000 and escalating penalties thereafter for continuing or subsequent violations.

Please feel free to reach out to any of our attorneys if you have any questions or would like our assistance in complying with New York City’s vaccine mandate.

NOTICE: Material provided on this website has been prepared by Kauff McGuire & Margolis LLP solely for general informational purposes, and it is not intended to and does not constitute legal advice. Material provided on the website is not privileged and does not create an attorney-client relationship with the Firm or any of its lawyers.