Seyfarth Synopsis:  New York City’s chief legal officer has shared some details about what to expect in the forthcoming regulations implementing the City’s COVID-19 vaccine mandate for private employers, which takes effect on December 27, 2021.

Mayor Bill de Blasio announced on December 6, 2021 — as summarized here — that all private sector employers in New York City will be required to ensure their employees are vaccinated against COVID-19. His surprise announcement left out most of the details, and he stated that the City would release guidance on December 15.

Meanwhile, on December 10, New York Governor Kathy Hochul declared that masks will be required in all indoor public places unless they implement a proof-of-vaccination requirement. That mandate takes effect on December 13.

In the days after these developments, Seyfarth and representatives of other interested parties spoke with New York City’s chief legal officer, Corporation Counsel Georgia Pestana, about what to expect in the employer-mandate regulations. Below we summarize points of particular interest to employers from that discussion.  

According to Pestana, the regulations released on December 15 will include the following points of likely interest to employers in New York City:

• While the effective date of the mandate is December 27, 2021, employees will need only one vaccine dose administered by that date, with the full vaccination requirement applying at a date to be specified in mid-January 2022.
• For now, booster shots will not be required for employees to be considered “fully vaccinated,” meaning that two doses of the Pfizer or Moderna vaccines or one dose of Johnson & Johnson will be sufficient.
• The standards for medical accommodations and religious exemptions will be the same as those already applicable for employees who are covered by vaccine mandates  imposed by private employers.
• The City will accept attestations from employers that they verified their employees’ vaccination status through visual inspection of vaccination cards or passport applications like NYC Covid Safe, Excelsior Pass, and the CLEAR Health Pass or through storage of photos.
• The mandate will apply to work anywhere in the City, including outdoors, with the exception of home-based work.
• The mandate will apply to sole proprietors, including those who market themselves as independent contractors to others.
• It is unclear whether entities and individuals will be responsible for mandating vaccination for independent contractors they engage.
• The mandate will apply to everyone who performs work in New York City with any regularity, not individuals who come into the City intermittently.

The City vaccine mandate overlaps to some extent with the statewide mask mandate that takes effect on December 13. Because the mask mandate applies only in public places where vaccination is not required, employers that comply with the City vaccine requirement, and that do not otherwise receive unvaccinated visitors on their premises, need not require masking for their employees.  The FAQs applicable to the mask mandate state that businesses can choose to implement a vaccination requirement as a condition of entry in lieu of a mask requirement. However, they make clear that "[w]hichever requirement is selected, it must apply to all within the business/venue's capacity, including staff, patrons, visitors, and guests. A business and venue cannot do a 'combination' requirement." 

In addition, employers remain subject to the New York HERO Act, which requires various protective measures when the State has declared a public health emergency involving an airborne infectious disease. The State Health Commissioner issued such a declaration in September 2021 with respect to COVID-19. That declaration remains in effect until December 15, but is likely to be extended in light of the emergence of the omicron variant.

Under the HERO Act protocols applicable to most employers, masks are not required for employees in workplaces where all individuals are fully vaccinated. And in a workplace where employees are not fully vaccinated, the Act requires masking only when social distancing cannot be observed.

Seyfarth will continue to monitor developments in real time and will issue updates promptly.