NYC Issues Mandatory Vaccination Order and Related Guidance

On December 6, Mayor De Blasio announced a mandatory vaccination order for all New York City employers.  The text of that order, and the related guidance, has now been issued by the City. 

The order applies to any non-governmental employer with more than one worker in New York City or who maintains a workplace in New York City, including self-employed individuals or sole practitioners who work at a workplace or who interact with workers or the public in the course of their business (collectively, “covered entities”).  Covered entities must require workers to provide proof of vaccination against COVID-19 before entering the workplace (subject to the reasonable accommodation process discussed below).  The FAQs make clear that by December 27, workers only need to submit proof of one vaccination dose; however, if a second-dose would be required to be considered fully vaccinated, proof of the second dose must be submitted within 45 days.  Failure to provide that proof would result in the worker’s exclusion from the workplace. The FAQs note that employers are not required to fire non-compliant individuals, stating it is the employer’s decision whether the worker can contribute to the business while working remotely.

“Worker” is broadly defined in the order to not only include employees but the employer itself, interns, volunteers, and contractors.  Individuals who work from home and who do not interact in-person with co-workers or members of the public are not covered by the mandate.  There are also other exceptions related to certain non-City resident performing artists and athletes who are not required to be vaccinated per the Key to NYC program, as well as individuals who enter a workplace for a “quick and limited purpose.”  The Order also does not apply to entities or individuals who are already subject to other orders from either the City, State, or a federal entity that requires the employer to maintain or provide proof of full vaccination. 

Acceptable proof of vaccination includes a photo or hardcopy of the CDC Covid Vaccination Card or other official immunization record that provides the person’s name, vaccine brand, and date of administration; a photo or hardcopy 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; the NYC COVID Safe App record; a valid NYS Excelsior Pass; CLEAR Health Pass; or other proof deemed by the Commissioner of Health as sufficient. There are three main ways in which an employer can verify and record proof of vaccination.  Employers can either retain a copy of the employee’s proof of vaccination or make a “record of such proof of vaccination” that includes the employee’s name and whether they are fully vaccinated.  If an employee only has one dose in a two-dose vaccine series, the record must also reflect the date by which the employee must provide proof of receiving the second dose.  As stated above, this date must be no later than 45 days after proof of the first dose was submitted.  The FAQs state that employers should also ask to see proof of identification along with the proof of vaccination if the employee is just showing proof of vaccination and not utilizing a program that shows both identification and vaccination status.  For employees who receive a reasonable accommodation (discussed below), employers must maintain a record indicating that the accommodation was provided.  Records related to the basis of the accommodation, and any documentation provided in support of the request, must be maintained separately.  Instead of the above, employers may also check an individual’s proof of vaccination before allowing the worker to enter the workplace. Employers must still maintain a record of that verification. This check must be performed daily. 

As stated above, the mandate also applies to non-employee workers, so employers also have vaccination-verification obligations for individuals such as contractors.  The order states that in lieu of maintaining records for non-employee workers, the covered entity may request that the worker’s employer confirm proof of vaccination.  This request and the confirmation must also be maintained by the employer. 

All records related to vaccination verification must be treated as confidential and stored in a secure manner to ensure the privacy and security of the information; however, the records must be made available to the City for inspection upon request.

On the issue of reasonable accommodations, the Order merely notes that it should not be construed as prohibiting accommodations for medical or religious reasons. The FAQs and other guidance documents provide a bit more information: specifically, employees must apply for a reasonable accommodation by December 27, 2021 and employers may permit workers to continue to come into the workplace while their request is pending.  The City has also issued checklists to help employees assess reasonable accommodation requests.  Although the order and checklists only mention medical and religious accommodations, a related guidance document issued by the City notes that employers must also consider requests based on pregnancy, childbirth, lactation, or status as a victim of domestic violence, stalking, or sex offenses. 

Individuals who are entitled to a reasonable accommodation are not required to be excluded from the workplace and may instead be required to submit to regular testing, wear protective gear or change their work schedule or location to avoid close contact with others as an accommodation.  Remote work is also a potential reasonable accommodation. The guidance makes clear that employers do not have to grant an accommodation that would cause a direct threat to the employee, other employees, or customers, nor must the employer grant the accommodation if it would impose an undue hardship on the employer’s business.  For example, the guidance notes that allowing an unvaccinated individual to work in close proximity to high-risk individuals would likely pose a direct threat. If there is no reasonable accommodation that would permit an unvaccinated employee to continue performing their role without posing a direct threat or creating an undue hardship, then the guidance states employers should offer a leave of absence until either the employee can provide proof of vaccination, or it is otherwise safe for the employee to return to work.  Importantly, the FAQs state that City agencies may review an employer’s reasonable accommodation process and records to ensure that the employer “is handling requests promptly and appropriately.” 

Finally, on or before December 27, 2021, employers must affirm compliance with the order and post the affirmation in a conspicuous location.  The City has provided a form that employers must use for this purpose.  Inspectors from various City agencies will begin enforcing the order on December 27.  The FAQs seem to indicate that penalties will only be imposed on businesses who refuse to comply.

Given the tight turnaround for compliance, employers should immediately prepare to communicate the new vaccination requirements to their New York City employees and begin to implement a process for collecting vaccination records and assessing reasonable accommodation requests. Employers with questions about how best to implement this mandate should contact Kristina Grimshaw at kgrimshaw@fglawllc.com, Caroline Secola at csecola@fglawllc.com, or any attorney at the firm.

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