New York City Releases Guidance on COVID-19 Vaccination Mandate

December 17, 2021
On December 13, 2021, New York City issued an order, effective December 27, 2021, requiring workers in New York City who perform in-person work or interact with the public in the course of business to show proof they have received at least one dose of a COVID-19 vaccine before entering the workplace. Workers will then have 45 days to show proof of their second dose (for two-dose vaccines). The order further requires businesses to maintain records of worker vaccination status, to file a certificate of affirmation, and to post that certificate in the workplace. On December 15, 2021, New York City released guidance, frequently asked questions, and an information flyer for businesses. This guidance is discussed in additional detail below.

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The New York City worker vaccination requirement (“NYC Vaccine Mandate”) goes into effect December 27, 2021, and requires businesses to exclude from the workplace any worker who has not provided proof of having received at least one dose of a COVID-19 vaccine, unless that worker is granted a reasonable accommodation for medical or religious reasons.

Covered Entities. The NYC Vaccine Mandate applies to any non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City, and to self-employed individuals or sole practitioners who work at a workplace or interact with workers or the public in the course of their business. It does not apply to businesses that are already subject to another order of the New York City Commissioner of the Department of Health, Board of Health, the Mayor, or a state or federal entity that requires proof of full vaccination.

Interaction with Other Vaccination Requirements. The guidance references the currently stayed OSHA Emergency Temporary Standard (requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements), stating that “covered entities or individuals who are subject to federal requirements that are not currently in effect because of a court order must comply with this order.”

Proof of Vaccination. Businesses must view proof of vaccination and a form of identification.

Acceptable forms of proof of vaccination are: a photo or hard copy of a CDC vaccination card; NYC COVID Safe App; New York State Excelsior Pass; CLEAR Digital Vaccine Card; CLEAR Health Pass; “official vaccine record”; or a photo or hard copy of an official vaccination record of a vaccine administered outside the United States for one of the following vaccines: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.

Acceptable forms of identification include: a driver’s license; non-driver government ID card; IDNYC card; passport; or school or work ID card.

Recordkeeping. Businesses must verify and keep a record of each worker’s proof of vaccination or reasonable accommodation. A business may either (1) maintain a copy of each worker’s proof of vaccination, or (2) create a paper or electronic record that includes the following information for each worker: worker’s name; whether the worker is fully vaccinated; and for workers who submitted proof of the first dose of a two-dose vaccine, the date by which they can provide proof of a second dose (no later than 45 days after submitting proof of the first dose).

For independent contractors or employees of other firms, businesses can either check proof of vaccination or request that the other employer confirm that the individual is vaccinated. If the latter, businesses must maintain a record of that request and the confirmation.

Any vaccination information should be collected and stored in a secure manner to ensure the privacy and security of the information. Such information should only be accessed by employees or other individuals who have a legitimate need to access such information for purposes of compliance with the NYC Vaccine Mandate, or other governmental orders, laws, or regulations. Vaccination information should not be used for any other purpose.

Reasonable Accommodations. If any workers do not get vaccinated because the business has approved a reasonable accommodation based on their religion or medical condition, the business will need to have a record of when it granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation.

Businesses may permit workers to continue coming into the workplace while their reasonable accommodation request is pending. However, New York City agencies may review a business’s reasonable accommodation process and records to ensure it is handling requests promptly and appropriately.

Guidance on how to handle reasonable accommodation requests as well as a checklist that employers can use to process reasonable accommodation requests is available here.

Second Doses of a Two-Dose Vaccine. If a worker submits proof of one dose of a two-dose vaccine by December 27, 2021, the worker will need to get a second dose within 45 days.

“Quick and Limited Purpose” Exception. Businesses do not need to check the vaccination status of a worker who enters the workplace “for a quick and limited purpose,” such as using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.

Certification and Posting. By December 27, 2021 businesses must complete this certificate affirming they are in compliance with the NYC Vaccine Mandate, and post it in a public place.

Businesses with Multiple Locations. Each individual business location within New York City is covered by the NYC Vaccine Mandate, and each location must post the certification. A business with multiple locations, however, may store employee vaccination records in one central location. Each business location should have contact information available to offer to inspectors to put them in touch with the business representative who is centrally storing such records for the business.

Enforcement. The guidance states, “Inspectors from various City agencies will begin enforcing the order on December 27, 2021 . . . . If a business refuses to comply, they are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.”

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The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.