Insights

New York City Publishes Guidance on Private-Sector Workplace Vaccination Requirement Going into Effect December 27, 2021

December 15, 2021

Beginning December 27, 2021, New York City (through an Order of the Commissioner of Health and Mental Hygiene) will require COVID-19 vaccination in private sector workplaces. Earlier today, New York City published additional guidance to assist employers to better understand their responsibilities and obligations under the Order (“NYC’s Private Workplace Vaccination Order”).

All New York City private sector workers who work in-person with others 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 approved or authorized for use by the Food and Drug Administration or World Health Organization by December 27, 2021. For those vaccines requiring a second dose, workers will then have 45 days to either show proof of having received their second dose or be excluded from the workplace.

As of December 27, businesses may not allow any unvaccinated workers to come to their workplace, unless entry is permitted pursuant to the reasonable accommodation process or for other limited purposes described below. A workplace is considered any location — including a vehicle — where an individual works in the presence of at least one other person.

It is the business’s decision to determine whether to discipline or fire a worker who refuses to get fully vaccinated (and is not granted a reasonable accommodation). Businesses are free to adopt a vaccination policy that is stricter than what is required under NYC’s Private Workplace Vaccination Order, so long as the policy is not discriminatory or otherwise unlawful. For instance, businesses not already subject to the “Key to NYC” requirements may also require that clients, customers or visitors be vaccinated to enter the workplace.

“Workers” include full- or part- time staff members, employers, employees, interns, volunteers and contractors. In addition, individuals who are self-employed or sole proprietors are also covered as “workers” if they work at a workplace, interact with other workers in-person, or interact with the public in-person in the course of their work.

Unlike the Emergency Temporary Standard published by the Occupational Safety and Health Administration (which is presently not being enforced pursuant to court order) requiring employers of 100 or more workers to implement a mandatory vaccination or testing requirement, NYC’s Private Workplace Vaccination Requirement applies to all private sector employers regardless of the number of employees, and does not provide a weekly testing alternative (except when used as a reasonable accommodation).

Pursuant to New York State’s “mask mandate,” masks must be worn in all indoor public spaces (including offices) through at least January 15, 2022, unless the business requires proof of full vaccination as a condition of entry. Until all employees submit proof of full vaccination status, masks must be worn in the workplace. In addition, for those businesses that permit unvaccinated third parties to enter their indoor space, masks must continue to be worn by all. Refer to Herrick’s December 13, 2021 alert for more information regarding the New York State requirement.

Verifying Proof of Vaccination

Employers must verify workers’ proof of vaccination by reviewing the proof of vaccination and a form of identification.

Proof of vaccination can be established by providing a digital photo or photocopy of a CDC Vaccination Card, NYC Vaccination Record, or other official immunization record, including from a health care provider. Workers may also provide proof through apps approved by the city: NYC COVID Safe App, CLEAR Health Pass, and/or Excelsior Pass or Excelsior Pass Plus.

Acceptable forms of identification include a driver’s license, government-issued identification card, and school or work identification card.

Record Keeping

Businesses are required to verify and keep a record of each worker’s proof of vaccination by December 27. The guidance provides three options to businesses to meet this requirement:

  1. Copy of the worker’s proof of vaccination or a record of a reasonable accommodation with supporting documentation.
  2. Paper or electronic record detailing the following information for each worker:
  • Worker’s name;
  • Whether the worker is fully vaccinated;
  • The date by which a worker who has submitted proof of having received the first dose of a two-dose vaccine can provide proof of a second dose (no later than 45 days after submitting proof of the first dose); and
  • Record of reasonable accommodation with supporting documentation.
  1. Check each worker’s proof of vaccination before they enter the workplace each day and maintain a record of each verification.

Additionally, for contractors, businesses can either verify their vaccination proof directly, or request that the contractor’s employer verify the worker’s proof of vaccination. For the latter, businesses must maintain a log of the requests to, and confirmations from, the contractor’s employer.

These verification records must be treated as confidential.

Exceptions

NYC’s Private Workplace Vaccination Requirement does not apply to:

  • People who work alone and do not have in-person contact with co-workers or others in the course of business.
  • People who enter a workplace briefly for a limited purpose, such as to use the restroom, make a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.
  • Non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them.

Reasonable Accommodations

Workers who have a sincerely held religious belief or observance or medical condition that prevent them from being vaccinated must apply for a reasonable accommodation by December 27. The city has provided a checklist to use when determining whether to grant requests for medical or religious accommodations (link below). The FAQ published by the city states that “if an employer chooses to follow this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.” Employees may further request reasonable accommodations as permitted by the New York City Human Rights Law, and employers should be prepared to engage in a cooperative dialogue with such employees. Employers may deny requests for accommodations that impose an undue burden on the employer, including by causing a direct threat to others. While the request is being considered, employers may permit these workers to continue to come into the workplace.

Posting Requirement

Businesses that have not already posted a notice per the “Key to NYC” requirements must complete and publicly post the Affirmation of Compliance with Workplace Vaccination Requirements certificate affirming that they are in compliance with NYC’s Private Workplace Vaccination Requirement by December 27. The certificate is linked below.

Enforcement and Penalties

New York City will deploy inspectors from various agencies to enforce the NYC Private Workplace Vaccination Requirement, including record keeping and posting requirements, beginning December 27, 2021.

Businesses who refuse to comply will be subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

We are continuing to monitor developments applicable to New York employers.

Resources

Guidance on NYC’s Private Workplace Vaccination Requirement is available here: https://www1.nyc.gov/site/doh/covid/covid-19-vaccine-workplace-requirement.page.

Frequently Asked Questions are available here: https://www1.nyc.gov/assets/counseltothemayor/downloads/Workplace-FAQ.pdf.

The Affirmation of Compliance with Workplace Vaccination Requirements certificate is available here: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-workplace-requirement-affirmation.pdf.

Guidance on Accommodations, including a checklist for determining whether to grant requests for medical or religious accommodations is available here: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/vaccination-workplace-accommodations.pdf.

Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements is available here: https://www1.nyc.gov/assets/cchr/downloads/pdf/publications/Vax-Employment-Guidance.pdf.


Please contact a member of Herrick’s Employment Group with any questions.

Carol M. Goodman at +1 212 592 1465 or [email protected]
Jalise Burt at +1 212 592 1590 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]

© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.