On August 16, 2021, Mayor Bill de Blasio executed Emergency Executive Order 225 (“EO 225”) effectuating the recently announced “Key to NYC” vaccination requirement for indoor entertainment, recreation, dining, and fitness establishments. On that same day, New York City issued a summary of the new law and Frequently Asked Questions concerning the requirements as well.
While EO 225 goes into effect on August 17, 2021, enforcement of its requirements will not begin until September 13, 2021. All businesses impacted by these new requirements must immediately update vaccination policies for employees, guests, and contractors to ensure compliance with EO 225.
What Businesses are “Covered Entities”?
Under EO 225, with limited exception as described below, no “covered entity” may permit a patron, employee, intern, volunteer, or contractor who is 12 years old or older to enter its premises without displaying proof of receiving at least one (1) dose of a COVID-19 vaccine and “identification bearing the same identifying information as the proof of vaccination.”
A “covered entity” means any businesses within the following three (3) categories:
- Indoor Entertainment and Recreational Settings, including indoor portions of the following locations, regardless of the activity at such locations: movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums and galleries, aquariums, zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers.
- Indoor Food Services, including indoor portions of food service establishments offering food and drink, including all indoor dining areas of food service establishments that receive letter grades as described in section 81.51 of the New York City Health Code, businesses operating indoor seating areas of food courts, catering food service establishments that provide food indoors on its premises, and any indoor portions of food service establishment that is regulated by the New York State Department of Agriculture and Markets offering food for on-premises indoor consumption.
- The requirements of this new law do not apply to any food service establishment offering food and/or drink exclusively for off-premises or outdoor consumption, or to a food service establishment providing charitable food services, such as soup kitchens.
- If the business has indoor and outdoor food service spaces, only the indoor portions (as defined in EO 225) are subject to the new requirements.
- Indoor Gyms and Fitness Settings, including indoor portions of standalone and hotel gyms and fitness centers, gyms and fitness centers in higher education institutions, yoga/Pilates/barre/dance studios, boxing/kickboxing gyms, fitness boot camps, indoor pools, CrossFit or other plyometric boxes, and other facilities used for conducting group fitness classes.
“Covered entities” do not include pre-kindergarten through grade twelve (12) public and non-public schools and programs, child care programs, senior centers, or community centers. EO 225 also sets forth that a “covered entity” is not required to abide by the vaccination requirement in private residential buildings or office buildings where the use of which is limited to residents, owners, or tenants of that building.
Exceptions for Certain Individuals
“Covered entities” may permit the following individuals to enter their premises without providing proof of vaccination, so long as such individuals wear a face mask at all times when socially distancing from others is not possible:
- Individuals entering for a quick and limited purpose (for example, using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs);
- A nonresident performing artist not regularly employed by the “covered entity” while they are in a covered premises for purposes of performing;
- A nonresident professional athlete/sports team who enters a covered premises as part of their regular employment for purposes of competing; and
- A nonresident individual accompanying a performing artist, or professional athlete/sports team into a covered premises as part of their regular employment, so long as the performing artist or professional athlete/sports team are performing or competing in the covered premises.
Sufficient Proof of Vaccination
As noted above, individuals must show that they have received at least one (1) dose of a COVID-19 vaccine authorized by the U.S. Food and Drug Administration (“FDA”) or by the World Health Organization (“WHO”). EO 225 states that such proof may be established by:
- A CDC COVID-19 Vaccination Record Card or an official immunization record from the jurisdiction where the vaccine was administered or a digital or physical photo of such a card or record, reflecting the person’s name, vaccine brand, and date administered;
- A New York City COVID Safe Pass; or
- A New York State Excelsior Pass.
Recordkeeping and Notice Requirements
All “covered entities” must post a sign regarding the new requirements in a conspicuous place that is viewable by prospective patrons prior to entering the establishment. To satisfy this posting requirement, the law notes that a “covered entity” may use the model sign created by the New York City Department of Health and Mental Hygiene (“DOHMH”), which is available online at nyc.gov/keytoNYC, or may alternatively use its own sign provided it meets certain size and font requirements.
The new law also requires “covered entities” to develop a written plan for implementing and enforcing the requirements of EO 225, which must be made available for inspection upon request from a City official.
Penalties for violation of EO 225 include a fine of not less than $1,000 for a first offense, $2,000 for a second offense within twelve (12) months, and $5,000 for each subsequent offense within twelve (12) months of the second offense. EO 225 clearly states that penalties for any violations of the law will not begin until September 13, 2021.
Reasonable Accommodations for Individuals Who Cannot Get Vaccinated Due to a Disability or Sincerely Held Religious Belief
Notably, EO 225 does not contain any exceptions to the vaccination requirement for those who cannot get a COVID-19 vaccine due to a disability, allergy, or sincerely held religious belief. The FAQs, however, state:
“Do I need to provide any reasonable accommodations to patrons and employees?
Each Key to NYC business should consider appropriate reasonable accommodations, mindful of the purposes behind this policy and public health. For additional information, call the Small Business Services hotline at 888- SBS-4-NYC.”
EO 225’s silence on the accommodation issue and the lack of official guidance creates ambiguities for businesses to juggle when receiving requests for accommodation from the vaccination requirement because of a medical condition or sincerely held religious belief. Therefore, businesses should consult with counsel when receiving accommodation requests and stay abreast of any new guidance issued in the future.