Pursuant to a new Order issued by New York City’s Commissioner of Health and Mental Hygiene, beginning December 27 workers in New York City who perform in-person work or interact with the public in the course of their work must provide proof of at least one dose of a COVID-19 vaccination before entering the workplace.  Workers then have 45 days to show proof of their second dose if they received either the Pfizer or Moderna vaccine.  The Order requires employers to exclude from the workplace any worker who has not provided proof of vaccination or been granted a religious or medical accommodation to the vaccine mandate, as well as workers who do not provide proof of a second Pfizer or Moderna dose within 45 days of submitting proof of the first dose.

Who Is Covered Under the Vaccination Order?

The Order applies to all non-governmental entities that employ more than one worker in New York City or maintain 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.  The Order specifies that it applies to any workplace location where work is performed in the presence of another worker or member of the public, including vehicles.  This covers a wide range of workers, including taxicab and Uber drivers, self-employed workers who rent desks in a shared workspace, and in-home caregivers.  It applies to full-time and part-time workers, as well as interns, volunteers, and contractors.

What Documentation is Required?

To comply with the Order, workers must show their employer one of the following: a photo or hard copy of their CDC vaccination card, NYC COVID Safe App, New York State Excelsior Pass, CLEAR’s Digital Vaccine Card or Health Pass, an official vaccine record, or a photo or hard copy of an official vaccination record of a vaccine administered outside the United States for certain accepted vaccines.  Workers must also show a form of identification, which may include a driver’s license, government ID, IDNYC card, passport, or school or work ID card.  Covered employers are not required to request the vaccination records of contract workers, but they must request the contractor’s employer confirm the contractor is vaccinated and maintain a copy of the request and confirmation.

Employers must maintain a record of each worker’s proof of vaccination, which can include copies of workers’ proof of vaccination, or the employer’s own electronic or paper record that includes the worker’s name, vaccination status, and date by which a second dose will be provided if not already provided.

What Are the Requirements for Accommodations?

Reasonable accommodations may only be granted for documented religious or medical reasons, and workers seeking an accommodation must apply by December 27.  The Order does not permit accommodations based on social or political beliefs.  Employers with existing vaccine mandates that have permitted accommodations for social or political beliefs will now need to request proof of vaccination, or a religious or medical accommodation request, from those individuals.

Upon receiving a religious or medical accommodation request, the employer must engage in an interactive process with the requesting worker to determine whether a reasonable accommodation exists that does not pose an undue hardship to the employer.  The City’s Guidance on Accommodations for Workers states that in determining whether an undue hardship exists, employers should consider the nature and cost of the accommodation needed and the impact of the accommodation on the operation of the facility.  The Guidance contains checklists for assessing accommodation requests and lists potential accommodations, including telework or remote work that does not expose others to the accommodated worker, weekly PCR testing and masking at all times when not eating or drinking, or a leave of absence.

Employers may permit workers to enter the workplace while their accommodation request is pending.  Employers should keep all copies of accommodation requests and completed checklists, and when an accommodation is approved the employer must record the basis for the accommodation and keep all supporting documentation.  The Order does not provide a specific deadline by which employers must grant or deny religious or medical accommodations but encourages them to do so promptly.

The City has also published Frequently Asked Questions that are designed to help employers understand their obligations under the new vaccine mandate.

How Should Covered Employers Ensure Compliance with the Order?

Covered employers who fail to comply with the Order may be subject to a $1,000 fine and escalating penalties if violations persist.  Inspectors from various New York City agencies will begin enforcing the Order on December 27, so New York City employers should take the following steps to ensure compliance and avoid penalties:

• Develop a plan: Covered entities should promptly notify their workers of the vaccination requirements and determine who will be responsible for reviewing the required vaccination records and ensuring compliance with the Order. Employers should also implement a process to consider accommodation requests, consistent with the City’s Guidance on Accommodation for Workers.
• Store vaccination records securely: According to EEOC Guidance, any records regarding an employee’s COVID-19 vaccination status must be treated as confidential medical records under the Americans with Disabilities Act (ADA). This includes vaccination records, medical accommodation requests, and records or notes from medical providers.  Confidential medical records must be stored separately from personnel files, and access should only be granted to those employees who need to know the information (e., those designated responsible for reviewing and maintaining vaccination records and engaging in the reasonable accommodations process).  For more guidance on vaccination information storage, see Legal Considerations and Best Practices for Employers Processing Vaccination Data.
• Sign and post Affirmation of Compliance: By December 27, covered entities must complete an Affirmation of Compliance with Workplace Vaccination Requirements and post it in a public-facing location.

Does the Order Require Masks?

While the New York City Order does not require employers to implement mask mandates, New York state masking requirements set forth by the Department of Health require businesses in New York  to either implement a vaccination requirement (proof of full vaccination for individuals six and older and proof of at least one dose for children five and younger) for anyone entering their indoor business, or a mask requirement for anyone over two years old indoors while not eating or drinking.  The New York City Order does not alter these requirements, and if businesses do not require proof of vaccination from customers or patrons who enter their business, they must implement a mask requirement for everyone entering their business to comply with the statewide order.