New “Key to NYC” guidance for private sector employers was released on Wednesday following New York City Mayor Bill de Blasio’s December 6 announcement that employees (1) not previously covered under the existing Key to NYC vaccination requirements and (2) who perform in-person work for private businesses in the city must receive at least one dose of a COVID-19 vaccine by December 27.
Scope of the Private Sector Mandate
The Order of the Commissioner of Health and Mental Hygiene Requiring Vaccination in the Workplace (the Order) and accompanying guidance (the Guidance) that followed Mayor de Blasio’s December 6 announcement state that a covered entity is “[any] non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City” or “a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business.”
A covered “worker” is any individual who works in-person in New York City at a workplace—including a full- or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered entity, as well as a self-employed individual or a sole practitioner. Notably, the Order applies if workers perform work in the presence of other workers or members of the public in New York City, even if the employer does not maintain a physical workspace in New York City.
There has been no substantial change to the Key to NYC Indoor Public Activities guidance that covers indoor dining, fitness facilities, and entertainment venues. We note, however, the Guidance clarifies that visitors and patrons to establishments other than indoor dining, fitness facilities, and entertainment venues do not need to verify vaccination status (e.g., bank patrons).
Employers must also verify the vaccination status of contractors, but this requirement can be met by having a contractor’s employer, where applicable, confirm the contractor’s vaccination status, so long as employers maintain a record of requests for proof of vaccination, as well as the responses to those requests.
PROOF-OF-VACCINATION REQUIREMENT
Private sector employees in New York City must, by December 27, show their employer proof of vaccination and a matching form of identification. Employers that previously relied on attestations to verify the vaccination status of workers will now need actual proof of each employee’s vaccination, along with a matching form of identification.
Sufficient proof includes the following:
- Photo or hard copy of CDC vaccination card (including a photo maintained using the NYC COVID Safe App)
- New York State Excelsior Pass
- CLEAR Digital Vaccine Card
- CLEAR Health Pass
- Another official vaccine record (e.g., a hospital or healthcare provider record of immunization)
- 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, Vaxzevria, Sinopharm, or Sinovac
New York City employers now need to maintain a record of that proof in one of three ways:
- Keeping a copy of proof of vaccination from each employee
- Creating a paper or electronic record that lists the following for each worker:
- Name
- Whether the worker is fully vaccinated
- 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 (must be within 45 days after submitting proof of the first dose)
- For workers who received a reasonable accommodation, a record of the reasonable accommodation with supporting documents (if applicable, and as set forth in more detail in the next section)
- Creating a paper or electronic record confirming checking of proof of vaccination each day before each worker enters the worksite
While the Guidance explains that employees who refuse to comply with the vaccine requirements should not be permitted in the workplace, employers may allow employees into the workplace for a quick and limited purpose such as making a delivery or using a restroom, to discipline and/or terminate non-compliant employees, or to facilitate the employee to work remotely.
RELIGIOUS AND MEDICAL ACCOMMODATIONS
Employers must keep records for any employee who requests a reasonable accommodation based on religious or medical reasons. This should include written records of the cooperative dialogue process, including the date the accommodation was requested and the date it was granted or denied, the reason for granting or denying the accommodation, and any supporting documentation the worker provided.
Any workers seeking an accommodation must apply for one by December 27, 2021 (although the adjudication of that request can occur after that date). During the review of any accommodation, employers may allow workers to come into the workplace while the request is pending but should take steps to ensure the safety of others in the meantime, such as mandatory masking and regular testing.
The Guidance also refers to additional Guidance on Accommodations for Workers (including sample forms).
POSTING REQUIREMENTS
By December 27, 2021, employers must also post an attestation sign in a conspicuous location showing they are in compliance with the Order (view the template attestation). If an employer does not have a fixed workplace, employees may keep their own proof of vaccination with them at all times in lieu of the employer posting the attestation sign.
ENFORCEMENT AND PENALTIES FOR NONCOMPLIANCE
Inspectors from various city agencies will enforce the order. Businesses in violation may be subject to a fine of $1,000 and escalating penalties thereafter.
BEST PRACTICES AND NEXT STEPS
Employers are encouraged to take steps to ensure that they are compliant with this new law ahead of the December 27 deadline by doing the following:
- Requiring proof of vaccination from all employees
- Processing requests for reasonable accommodation
- Completing and posting the required attestation
- Reviewing existing policies for conflicts with the new law
- Training human resources personnel on the details of the law
- Updating policies, practices, and procedures to address non-compliant employees (who do not qualify for an applicable religious or medical accommodation)
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