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December 08, 2021

NYC Imposes Nation's First COVID-19 Vaccine Mandate for Private Sector and Expands Vaccination Requirements at Certain Indoor Venues

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Key Takeaways

  • New York City Mayor Bill de Blasio announced a first-in-the-nation COVID-19 vaccination mandate for private sector employees, which will take effect on December 27, 2021. He also announced that, starting December 14, 2021, the “Key to NYC” program―which requires vaccination of workers and customers at indoor dining, fitness, entertainment and performance venues―will require children ages 5-11 to show proof of one vaccine dose to enter those venues. In addition, beginning December 27, 2021, the program will require people 12 years and older to show proof of two vaccine doses, except for those who have received the Johnson & Johnson one-dose vaccine.

New York City Mayor Bill de Blasio announced a first-in-the-nation COVID-19 vaccination mandate for private sector employees, which will take effect on December 27, 2021. He also announced that, starting December 14, 2021, the "Key to NYC" program―which requires vaccination of workers and customers at indoor dining, fitness, entertainment and performance venues―will require children ages 5-11 to show proof of one vaccine dose to enter those venues. In addition, beginning December 27, 2021, the program will require people 12 years and older to show proof of two vaccine doses, except for those who have received the Johnson & Johnson one-dose vaccine. Children ages 5-11 will also be required to show proof of their receipt of one dose of a vaccine by December 14, 2021, to participate in high COVID-19 risk extracurricular activities, including sports, band, orchestra and dance.

New York City will issue enforcement and reasonable accommodation guidance on December 15, 2021. Many specific details remain unknown until then, but we do know the following:

  1. The mandate appears to apply to private employers regardless of size, including "small businesses," although that term is yet undefined;
  2. There has been discussion of a COVID-19 testing option in lieu of receiving the vaccine;
  3. Acceptable proof of vaccination includes: (i) a CDC issued vaccination card; (ii) the New York State Excelsior Pass; (iii) the Clear Health Pass; and (iv) the NYC COVID Safe app;
  4. The mandate will not apply to those who work remotely.
  5. Employers and businesses will be required to provide reasonable accommodations based on disability and sincerely held religious beliefs preventing employees and customers from receiving the COVID-19 vaccine.

We do not know whether any workplaces will be excluded, such as outdoor workplaces, nor how New York City will track compliance or the penalties imposed for violations.

We expect these mandates to be challenged in the courts, similar to the vaccine mandates earlier this year for New York state healthcare workers and New York City public school workers and issued by the Occupational Safety and Health Administration (OSHA). Unlike the OSHA Emergency Temporary Standard (OSHA ETS) that limited the vaccination mandate to larger employers of 100 or more employees―which was challenged, in part, on this basis and its implementation stayed pending litigation―the New York City mandate cures this potentially fatal flaw of the OSHA ETS by applying to small businesses. On the other hand, complying with the mandate may be difficult for smaller businesses. That said, even if the New York City mandates are challenged, the changes announced could be implemented as planned while the disputes play out in the courts, as such was the case with prior challenges to the Key to NYC program, for example. Accordingly, employers should proceed as if the New York City changes will be implemented as announced in order to avoid any legal ramifications for violations.

What This Means for Employers

To implement the mandates, employers will at the very least be required to develop new policies and train human resources staff and managers on the policies and evaluation of requests for reasonable accommodations based on disability and sincerely held religious beliefs. Given the expansive changes in New York City, employers are encouraged to consult with employment counsel to incorporate the vaccine mandates into their workplaces.

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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