December 17, 2021 UPDATE: New York City Private Employer Vaccine Mandate Takes Effect December 27, 2021

New York City has now published its Order and FAQs to employers regarding its private employer vaccine mandate that is set to take effect on December 27, 2021. The Order and FAQs clarify that any employer who employs one or more employees in New York City must require all employees to provide proof of a vaccination shot by December 27, 2021. Employees who fail to provide a proof of at least one vaccination shot, or who do not have a religious or medical exemption, must be excluded from the workplace. Sole proprietors or self-employed individuals are excluded from this Order, unless they interact with other workers in person or interact with the public in person in the course of their work. Any co-working spaces are included in the Order, and the co-working space is obligated to obtain proof of vaccination when renting space to individuals. For small companies renting space in a co-working space, the obligation is on the small business to maintain proof of vaccination. Commercial landlords who do not maintain co-working spaces are exempt from this requirement for their tenants; however, commercial landlords are required to ensure that their employees comply with the vaccination requirement.

Under the Order, all private employers with one or more employee in New York City are required to:

1. Maintain a copy of each worker’s proof of vaccination records (including full-time and part-time employees, interns, volunteers, and contractors).

a. Acceptable proof of vaccinations include:
i. A photo or hard copy of their CDC vaccination card
ii. NYC COVID Safe App
iii. New York State Excelsior Pass
iv. CLEAR’s Digital Vaccine Card
v. CLEAR Health Pass
vi. Official vaccine record
vii. 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

b. In addition to checking the proof of vaccination, employers must review the employee’s identification. Acceptable forms of identification are:
i. Driver’s license
ii. Non-driver government ID card
iii. IDNYC card
iv. Passport
v. School or work ID card

c. Workers who only receive one dose of the two-dose vaccination by December 27, 2021 must receive the second vaccine dose within 45 days of their first dose.

d. Proof of vaccinations are considered sensitive medical records and must be maintained separately from the employee’s personnel file.

2. Display an attestation of compliance in the workplace.

a. On or before December 27, 2021, once an employer has received proof of vaccination from all workers, the employer must sign and display an “Affirmation of Compliance with Workplace Vaccination Requirements” in the workplace.

b. The “Affirmation of Compliance with Workplace Vaccination Requirements” form is available here.

Reasonable Accommodations for Religious and Medical Conditions

Workers who are unable to be vaccinated either due to a religious or medical condition may apply for a reasonable accommodation on or before December 27, 2021. While the reasonable accommodation request is pending, employees may continue to enter the workplace. The New York City Department of Health maintains the right to review the reasonable accommodation request. New York City has prepared a checklist for each employer to use when reviewing a reasonable accommodation request. The checklist is available here. Employers should review this checklist for each employee requesting an exemption, maintain a copy of the checklist, their notes for each step and the underlying documentation required to be reviewed for each employee. To the extent the reasonable accommodation request includes medical records, these medical records should be maintained in a secure place that is separate and apart from the employee’s personnel file.

Workers Who Refuse to Be Vaccinated Who Are Not Subject to a Reasonable Accommodation

It is within the employer’s discretion on how to respond to workers who refuse to be vaccinated and who do not otherwise qualify for a reasonable accommodation. The City’s Order only requires that those workers who refuse to be vaccinated, and who do not qualify for a reasonable accommodation, be excluded from the workplace. Whether an employer chooses to terminate, suspend, discipline, allow the employer to work remotely, or to transfer the employee to a location without a mandatory vaccination requirement is within the employer’s discretion.

Penalties

Starting on December 27, 2021, inspectors from the City’s agencies will be out inspecting for proof of compliance with the Order. Any business who refuses to comply are subject to a fine starting at $1,000. Fines may escalate if the violation persists.

The attorneys in Forchelli Deegan Terrana LLP’s Employment & Labor department continue to closely monitor the ongoing COVID-19 developments and regulations imposed on employers and will provide further guidance on these, and any other regulations, imposed by the federal, state and local governments. Employers with questions about these new mandates and any other employment compliance questions should contact Gregory S. Lisi, Esq. or Lisa M. Casa, Esq. at 516-248-1700.