As expected, New York City published guidance yesterday designed to help covered employers implement the City’s recently announced order mandating COVID-19 vaccines for private sector workers.
What Is Required?
For any Workplace in NYC, Covered Employers must ensure that they receive proof of vaccination against COVID-19 from all of their in-person workers by December 27, 2021. Employers must obtain documentation that the worker (1) is “fully vaccinated,” (2) received one dose in a single-dose series, or (3) received at least one dose in a two-dose series.
Fully vaccinated means at least two weeks have passed since a worker received one dose in a single-dose series or the second dose in a two-dose series. The order does not require workers to receive booster shots to be considered fully vaccinated at this time. Workers who have only received one shot in a two-dose series have 45 days from December 27 to provide proof of having received a second dose, after which employers must exclude them from the workplace until proof of a second dose has been furnished.
Covered employers must affirm compliance with the order by December 27, 2021 by signing a one-page Department of Health and Mental Hygiene (DOHMH) attestation notice and posting it in a conspicuous location at their workplace. The attestation can be found here.
Covered employers also have recordkeeping requirements, discussed further below.
What Counts As a Workplace?
Workplace is defined as “any place where work is performed in the presence of another worker, or a member of the public” (irrespective of the size of the workforce or the resident status of the employees).
Who Counts As a Worker?
A worker is defined as an individual who works in-person in New York City (full- or part-time) in the presence of another worker or member of the public. Workers include staff members, employers, employees, interns, volunteers and contractors of a covered employer.
Who is a Covered Employer?
- Any non-governmental entity that employs at least two workers in New York City or maintains a workplace in New York City;
- Co-working spaces like WeWork;
- Chain businesses with multiple locations; and
- Self-employed individuals and sole proprietors if they work at a workplace, interact with other workers, or interact with the public in the course of their work (e.g., a speech pathologist visiting clients in their homes).
What is Proof?
|Valid Form of ID||Proof of Vaccination|
What Are The Recordkeeping Requirements?
Covered employers must maintain a record of each worker’s proof of vaccination, either by: (1) Making a copy or taking a picture of their proof of vaccination, or (2) Creating their own paper or electronic record, which must include each worker’s name, vaccination status, and if a worker submitted proof of only one dose of a two-dose vaccine, the date that the second dose (which must be within 45 days after proof of first dose) will be provided.
If a covered employer grants any workers a reasonable religious or medical accommodation, the employer must maintain a record of:
- All workers who were granted a reasonable accommodation
- The date of the accommodation,
- The basis for granting the accommodation, and
- Any supporting documentation the worker provided when requesting the accommodation.
If a covered employer hires a non–employee worker (e.g., a contractor), a record indicating that the covered employer requested and received confirmation from the contractor’s employer verifying the contractor’s vaccination status.
Are There Any Exceptions?
The order does not apply to businesses that are already subject to a federal, state or city order requiring them to maintain or provide proof of full vaccination, as well as individuals:
- Who work alone and have no in-person contact with co-workers or others;
- Who only briefly enter a workplace for a limited purpose (e.g., bathroom use);
- Who are non-NYC resident performing artists, college or professional athletes, or anyone who accompanies them; or
- Who have been granted a reasonable medical or religious accommodation.
- New York City’s guidance on how to handle requests for reasonable accommodations can be found here.
- Requests for a reasonable accommodation must be made no later than December 27, 2021.
These guidelines confirm the unique scope of New York City’s vaccine mandate, which applies to virtually every private-sector worker in New York City.
Inspectors from various New York City agencies will begin enforcing the order on December 27, 2021, and employers should ensure strict compliance with the law, as failure to comply may subject a covered employer to an initial penalty of $1,000, with escalating penalties thereafter.
New York in the News: Other COVID-19-Related Issues:
The New York City guidance comes just one day after New York State Supreme Court Justice Frank Nervo presided over oral arguments to determine whether to grant a temporary restraining order enjoining New York City from enforcing its COVID-19 vaccine mandate for municipal workers. At the hearing, Judge Nervo granted the TRO with respect to lead plaintiff Anthony Marciano, a NYPD detective who objected to receiving the vaccine. However, the parties remain at loggerheads over whether the TRO applies to all NYC municipal workers more broadly. The Judge has yet to issue a written order; per media reports, when asked if the mandate applied to all municipal workers, the Judge stated, “the Court declines to define it any further.”On Monday, the Supreme Court rejected two applications for emergency injunctive relief, denying applicants’ request that the Court enjoin New York from enforcing another of its COVID-19 vaccine mandates, this one applicable to all state healthcare workers. Applicants challenged the mandate on constitutional grounds, arguing a violation of the First Amendment’s Free Exercise Clause because the rule retained a medical exemption while removing all religious exemptions. Justices Gorsuch, Alito and Thomas dissented.
The New York City guide also follows New York State Governor Kathy Hochul’s recent announcement of a new statewide mask mandate effective December 13, 2021 through January 15, 2022. The New York state mask mandate requires all persons aged three and older who are medically able to tolerate a face covering to wear a mask while in any “indoor public place” (broadly defined to include any indoor space that is not a private residence), regardless of vaccination status.
However, the rule does not apply if the business or venue implements a policy requiring anyone aged 12 years or older to show proof that they are fully vaccinated against COVID-19 as a condition to entry. Fully vaccinated is defined as 14 days past an individual’s last vaccine dose, meaning either 14 days past the second Pfizer or Moderna dose, or 14 days past the single-dose Johnson & Johnson vaccine. Children aged 5-11 need only show proof of a single dose.
The mandate will remain in effect until January 15, 2022. Private employers must ensure that all staff and patrons wear a mask at all times while indoors – except when necessary to eat or drink – or risk facing a maximum civil penalty of up to $1,000 for each violation.
As with all COVID-19 orders, more information is expected and things are fluid. Squire Patton Boggs will monitor and provide updates as developments continue to unfold.