NYC Revises Guidance for Private Worker Vaccine Mandate
As employers may recall, on December 6, 2020, Mayor De Blasio announced a mandatory vaccination order for all New York City employers and on December 15, 2021 the text of that order, and the related guidance, was issued by the City. On December 23, 2021, NYC revised its FAQS for Covered Entities and Guidance on Accommodations for Workers related to this order. Significantly, these FAQS confirm that even employers who are covered by the OSHA Emergency Temporary Standard for large private employers must comply with this New York City order, meaning that their workers must be vaccinated to gain entrance to a workplace if they do not have a reasonable accommodation and there is no alternative testing option.
FAQS Concerning Vaccination
The revised FAQS confirm that workers who received their first dose of a two-dose vaccination more than forty-five days ago and still have not received their second dose should be excluded from the workplace until they receive their second dose or submit a request for a reasonable accommodation from the second dose. There is no exception for workers who claim that they are not fully vaccinated because they have been unable to get a vaccine appointment. There are also no exceptions for workers based on their industry or job duties.
FAQS Concerning Proof of Vaccination
Employees who are fully remote are not covered by this order and employers do not need to verify proof of vaccination for these remote employees if they come into the office for a “quick and limited purpose.” However, if these employees are in the office for more than a “quick and limited purpose”, such as occasionally attending meetings, they will be covered by the order and employers will need to verify their proof of vaccination. Employers do not have to pay employees who have been put on leave or terminated because they did not submit proof of a COVID-19 vaccine dose or a request for a reasonable accommodation by December 27th. However, employers must engage in a cooperative dialogue with employees who submit a reasonable accommodation request even if this request is submitted after the deadline. Employers may allow employees to enter the workplace while their reasonable accommodation request is pending.
The FAQS also clarifies that the order only applies to employees. It does not apply to customers or visitors. However, the FAQS note that customers may be covered by the Key to NYC program which is specific to certain indoor activities.
Guidance on Accommodations
The office of the Corporation Counsel also revised its guidance addressing accommodations related to this order, directing employers to guidance provided by the New York City Commission on Human Rights and the Equal Employment Opportunity Commission, confirming that those standards should still be followed when addressing vaccine-related accommodations. Additionally, the guidance provides two checklists, one for medical accommodations and one for religious accommodations where appropriate exemptions and accommodations are detailed.
Medical Accommodations
The medical accommodation checklist provides that all medical documentation must be from the employee’s healthcare provider with a valid license rather than just a treating physician. It also details several circumstances deemed worthy of a medical exemption by the CDC and New York City Department of Health and Mental Hygiene. These circumstances include “permanent medical exemptions”, which may be granted if a 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. There is a longer list of circumstances for “temporary medical exemptions” which include the following:
An employee has presented medical documentation showing that they are within 90 days of monoclonal antibody or convalescent plasma treatment of COVID-19;
An employee 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; or
An employee has pericarditis or myocarditis.
Appropriate accommodations include weekly PCR testing for COVID-19 and masking at all times when not eating or drinking (any eating or drinking must occur at least six feet away from others); allowing the accommodated employee to telework or remote work so that others are not exposed to the accommodated employee; or placing the accommodated employee on a leave of absence.
Religious Accommodations
Under the religious reasons checklist, a clergy letter is not required for a religious accommodation request, but it can be “helpful or persuasive when the clergy is someone who has a personal relationship with the employee.” The guidance also addresses form letters or letters from out-of-town clergy who do not know the employee and notes that those types of documents are generally not persuasive.
Employees who have received other vaccinations, should explain why those vaccines were not against their religion and employees who say their religious belief prevents them from allowing certain substances to enter their body should list/describe other commonly used medicines, food/drink, or other substances that they do not allow to enter their bodies. Additionally, employees who state that they cannot receive the vaccine because it was developed and/or tested using fetal cells, but take any other medications (e.g. ibuprofen/Advil and/or acetaminophen/Tylenol) developed or tested using fetal cell derivative lines generally will be denied an accommodation as such behavior is inconsistent with their claimed religious belief. The guidance identifies the same accommodations detailed for medical accommodations above for religious accommodations.
Other Accommodations
The guidance also provides that a brief extension of time for vaccination may be appropriate for individuals who are victims of domestic violence, sex offenses or stalking. However, a reasonable accommodation claim based on this rationale should be supported by documentation from a social worker, clergy member or other professional who can confirm the employee’s status as a victim.
Takeaways
Employers should consider following up with employees who have yet to receive their second dose of a two-dose vaccination and take appropriate actions to ensure that employees who do not abide by this rule are excluded from the workplace. Employers should also review their reasonable accommodation process as it relates to this order and consider using and retaining the checklists provided by the guidance when granting or denying an employee request.
Employers with questions about the NYC Private Worker Vaccine Mandate or the related revised FAQS and guidance should contact Caroline Secola at csecola@fglawllc.com or any attorney at the Firm.
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