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December 21, 2021

NYC Issues Guidance on Private Sector Vaccine Mandate, Expands Key to NYC Program

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Key Takeaways

  • As anticipated, New York City issued guidance on December 15, 2021, addressing its new private sector vaccination mandate, as well as the recent expansion of its Key to NYC program, both discussed in our previous Alert.
  • Beginning December 27, 2021, workers in New York City who report to a New York City workplace or interact with the public must show proof they have received at least one dose of a COVID-19 vaccine, unless an exception due to a religious or medical accommodation applies, or a worker only ever enters the workplace for a quick and limited purpose. Workers who received Pfizer or Moderna vaccines will then have 45 days to show proof of their second dose.

As anticipated, New York City issued guidance on December 15, 2021, addressing its new private sector vaccination mandate, as well as the recent expansion of its Key to NYC program, both discussed in our previous Alert.

New York City's December 14 and 15 publications include:

  • Private Sector Vaccine Requirement Frequently Asked Questions
  • Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements
  • Private Sector Vaccine Requirement Flyer for Business Owners
  • Vaccination Requirements for Nonpublic Schools
  • Affirmation of Compliance with Workplace Vaccination Requirements
  • Guidance on Accommodations for Workers
  • Guidance for Public Accommodations on Equitable Implementation of COVID-19 Vaccine Requirements
  • Key to NYC Updated Frequently Asked Questions
  • Key to NYC Conflict Resolution Tips for Businesses and Workers

Vaccination Mandate for Private Sector Employers

Beginning December 27, 2021, workers in New York City who report to a New York City workplace or interact with the public must show proof they have received at least one dose of a COVID-19 vaccine, unless an exception due to a religious or medical accommodation applies, or a worker only ever enters the workplace for a quick and limited purpose. Workers who received Pfizer or Moderna vaccines will then have 45 days to show proof of their second dose.

A "workplace" is defined as any location where a worker is in the presence of at least one other person, including in a vehicle.

The guidance makes clear that the new mandate will apply to all New York City employers with more than one employee, unless the employer is already subject to another similar mandate, such as the Key to NYC, which already requires proof of vaccination.

By December 27, 2021, all covered employers must verify and document the vaccination status of all workers who regularly enter the workplace. Employers can do this in one of three ways:

  1. Maintaining a copy of the employee's proof of vaccination or record of reasonable accommodation;
  2. Checking each employee's proof of vaccination each day as a condition of entry to the workplace and maintaining a verification log of each check; or
  3. Creating paper or electronic records for each worker that include:
    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 are required to check the vaccination status of not only employees but also interns, volunteers and contractors. Businesses that engage contractors can request that a contractor's employer confirm they are vaccinated, provided that it maintains record of the request and the confirmation.

Exceptions to the vaccine mandate apply to: (i) people who work alone without interaction with the public in the course of their business, (ii) those who enter a workplace briefly for a limited purpose, such as to use the bathroom, and (iii) nonresident performing artists, college or professional athletes and anyone who accompanies them.

The guidance makes clear that workers who have a sincerely held religious, moral or ethical belief (not a social or political belief) or a medical condition that prevents them from being vaccinated may apply for a reasonable accommodation. They must apply by December 27, 2021, and that begins the reasonable accommodation process. Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending. However, New York City agencies may review a covered entity's reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately.

The Guidance on Accommodations for Workers outlines narrow categories of medical conditions that qualify for accommodation. Permanent medical exemptions may be granted if (i) the worker had a severe allergic reaction after a previous dose or to a component of all three approved COVID-19 vaccines, or (ii) the worker has a known diagnosed allergy to a component in all three approved COVID-19 vaccines. Temporary medical exemptions, the length of which should be determined on a case-by-case basis after considering medical documentation, may be granted if: (i) the worker is within 90 days of receiving monoclonal antibody or convalescent plasma treatment of COVID-19, and has provided medical documentation to that effect; (ii) the worker has recently undergone stem cell transplant, CAR T-cell 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, and they have provided medical documentation to that effect; or (iii) the worker has pericarditis or myocarditis.

To qualify for a religious accommodation, the request must be based solely on a sincerely held religious, moral or ethical belief, and the worker must: (i) explain or document how the belief requires the worker not to be vaccinated (simply representing adherence to a particular religion is not sufficient); (ii) affirm they have not taken other kinds of vaccinations previously, unless they can explain why prior vaccinations were not against their religion; (iii) that that religious beliefs prevent them from allowing certain substances in their body and provide examples of same; or (iv) state that they cannot take the vaccine because it was developed and/or tested using fetal cells that the worker is concerned may have been the result of an abortion (if the worker takes medications such as Advil, Tylenol or other similar medications, they do not qualify for the accommodation). The guidance indicates that requests based solely on personal, political or philosophical preference do not qualify.

The mandate's guidance materials permit an employer to grant reasonable accommodations for religious or medical reasons in the form of weekly PCR testing for COVID-19 paired with masking, but only if such accommodation would not pose a direct threat to the worker or others. A "direct threat" includes permitting an unvaccinated employee to work in close proximity to high-risk individuals. Employers may also permit telework, a leave of absence or other accommodations in keeping with the order, and may deny requests for accommodations that would present an undue burden on the employer.

Employers are not required to terminate workers who refuse to comply with the mandate. As long as the employee is kept out of the workplace, the employer may use its own discretion in determining whether to discipline or terminate such worker, or if the worker can contribute to the business through alternative means such as remote work.

After confirming proof of vaccination and resolving all requests for accommodation, covered businesses must complete an Affirmation of Compliance with Workplace Vaccination Requirements form and post in a conspicuous location by December 27, 2021.

Key to NYC

New York City's Key to NYC program requires certain types of indoor entertainment, recreation, dining and fitness establishments to check that their visitors and staff are vaccinated. Examples of such establishments are movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums, aquariums, zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, hotel meeting and event spaces, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls and other recreational game centers.

As of December 14, 2021, children ages 5-11 must show proof of one vaccine dose. Further, beginning December 27, 2021, the program will require people age 12 and older―including employees―to show proof of two vaccine doses (or proof of one dose of the Johnson & Johnson vaccine). Beginning January 29, 2022, 5-11 year olds will need to show proof of a full regimen of a COVID-19 vaccine, just like individuals who are 12 and older.

The original guidance for Key to NYC did not provide for accommodations for patrons―the only exception for an individual who refused to show proof of vaccination was that such person could enter for very quick and limited purposes (such as using the bathroom, picking up food, paying a bill or changing in a locker room). The updated Key to NYC FAQs now state, however, that covered establishments should consider appropriate reasonable accommodations for patrons who haven't been vaccinated for reasons relating to a disability or medical condition. The FAQs provide a link to the newly published Guidance for Public Accommodations on COVID-19 Vaccine Requirements, which includes recent negative COVID-19 test and masking as an option for reasonable accommodation where it would not cause an undue hardship or direct threat. Examples of accommodations that are likely to pose a direct threat or an undue burden, according to the guidance, include allowing an unvaccinated customer to eat in the interior portion of a busy restaurant, participate in a group exercise class or participate in indoor, unmasked contact sports.

Notably, Key to NYC does not require businesses to make accommodations for patrons based on their religious beliefs.

With respect to staff, the Key to NYC FAQs advise that businesses should consider appropriate reasonable accommodations for staff who haven't been vaccinated for reasons relating to disability, religious belief, pregnancy or status as a victim of domestic violence, keeping in mind the purposes of the policy and public health. The FAQs provide a link to the newly published Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements. Employers are not required to grant any reasonable accommodation that would cause a direct threat to other employees or customers, or to the requester, or otherwise impose an undue hardship on the employer's business. Examples of accommodations that are likely to pose a direct threat, according to the guidance, include accommodations that would allow an unvaccinated employee to engage in a high-risk activity, such as yelling or exercising, while in close proximity to others, or to work in close proximity to high-risk individuals.

New York State Masking Requirement

Another overlapping requirement for New York City employers is New York state's new mask mandate, which went into effect December 13, 2021, and requires masks to be worn in all indoor public places unless the business or venue requires proof of vaccination as a condition of entry. This mask mandate applies to all persons, employees and patrons over the age of 2 who are medically able to tolerate a mask, regardless of vaccination status.

The FAQs published by the state provide that businesses may not permit a policy of "mix and match," i.e., allowing fully vaccinated persons to be unmasked while requiring masks for the unvaccinated or partially vaccinated. Unfortunately, the FAQs do not address the question employers with mandatory vaccination policies will ask: If an unvaccinated employee with an approved accommodation is on the premises, are all employees and patrons required to mask up? The answer to this question remains unclear, but if it does mean all employees and patrons must be masked up, this may well constitute an undue hardship to an on-site accommodation.

OSHA ETS Is Now in Effect

As fully discussed in our previous Alert, OSHA's Emergency Temporary Standard on COVID-19 Vaccination and Testing (ETS) is now in effect. The U.S. Court of Appeals for the Sixth Circuit reinstated the OSHA ETS (which had previously been stayed by the Fifth Circuit) on December 17, 2021. OSHA then announced that for employers making reasonable, good faith efforts to comply with the ETS, it would not begin enforcing: (1) all ETS requirements other than testing until January 10, 2022, and (2) the ETS testing requirement for unvaccinated employees until February 9, 2022.

The ETS provides that it preempts state and local laws that conflict with its requirements. The ETS does not appear to preempt laws that impose obligations that go beyond the ETS, such as the New York City vaccination mandates discussed above. Accordingly, employers should comply with more stringent state or local mandates, including those requiring vaccination (without a testing option) and masking of vaccinated employees.

New York employers outside the city that do not mandate vaccines as a condition of entry and instead choose to implement a policy allowing employees to either (a) be fully vaccinated or (b) provide proof of regular testing and wear a face covering at work, will be subject to Governor Kathy Hochul's mask mandate.

What This Means for Employers

Employers must start soliciting proof of vaccination status and requests for accommodation, as the deadline for employers to post their Affirmation of Compliance is December 27, 2021.

Employers should consult with employment counsel regarding implementation of the vaccination and mask mandates, including how to navigate requests for accommodations.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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