New York City Issues Guidance on COVID-19 Vaccine Mandate for Private Employers

New York City has released guidance on the COVID-19 vaccine mandate for private sector employers (COVID-19: Vaccination Workplace Requirement - NYC Health). As discussed in our previous advisory, New York City Mayor Bill de Blasio recently ordered that private sector employers must require that all of their employees who work in New York City receive COVID-19 vaccinations.

Beginning on December 27, 2021, all employees in New York City who perform in-person work or interact with the public in the course of business beyond a quick and limited purpose will be required to show proof of their first dose of the COVID-19 vaccine. Employees will then have 45 days to receive their second dose of a two-dose vaccine.

Covered businesses are required to exclude from the workplace all employees who have not met these requirements, with the exception of individuals who have requested reasonable accommodations for medical or religious reasons by December 27, 2021.

Covered Businesses

Any non-governmental entity that employs more than one worker in New York City or maintains or operates a workplace in New York City is covered. A "workplace" is defined as any place where work is performed in the presence of another worker, or a member of the public. Individuals who are self-employed or sole proprietors are not covered by the order unless and until they work at a workplace, or interact with other workers in-person, or interact with the public in-person in the course of their work. A "worker" is defined as a full or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered business.

Significantly, however, the order does not apply to covered entities or individuals who are already subject to another Order of the Commissioner of the Department of Health, Board of Health, the Mayor, or a state or federal entity that requires them to provide proof of full vaccination.

Coworking Spaces

If an individual rents workspace from a coworking company (i.e., WeWork), the coworking company is responsible for checking each individual worker's proof of vaccination when it rents the space to the individual.

If a small company regularly rents coworking space, the coworking company is permitted to request that the small company confirm that all of its workers entering the shared workspace are vaccinated. The small business is responsible for verifying and maintaining the necessary vaccination records of its workers. In these instances, the small company must comply with the confirmation/posting requirements discussed below.

Proof of Vaccination

Covered businesses are responsible for collecting proof of vaccination and securely maintaining records. Employers can make a copy or take a picture of worker vaccinations. Alternatively, employers may create their own paper or electronic record that includes:

• (1) The worker's name;
• (2) Whether the worker is fully vaccinated; and
• (3) For a worker who submits proof of the first dose of a two-dose vaccine, the date by which proof of the second dose will be provided, which must be no later than 45 days after the proof of the first dose was submitted.

Employers are also required to verify their workers' proof of vaccination. Employers should ask to view one of the following types of proof of vaccination and a form of identification (e.g., driver's license, non-driver government ID card, IDNYC card, passport, or school or work ID card):

• A photo or hard copy of their CDC vaccination card;
• NYC COVID Safe App;
• New York State Excelsior Pass;
• CLEAR's Digital Vaccine Card, CLEAR Health Pass;
• Official Vaccine Record; or
• A photo or hard copy of an official vaccination record or a vaccine administered outside of the United States for one of the following vaccines: AstraZeneca/SK bioscience, Serum Institute of India/COVISHILED and Vaczevria, Sinopharm, or Sinovac.

Employers are not required to keep a record of a contractor's vaccination status. Instead, employers can request that the contractor's employer confirm the contractor is vaccinated and maintain a record of both the request and the confirmation.

Accommodations for Workers

Workers who have a sincerely held religious belief, rather than a social or political belief, or a medical condition that prevents them from being vaccinated may apply for a reasonable accommodation to be exempt from the mandate. However, they must apply for a reasonable accommodation by December 27, 2021. Their application begins the reasonable accommodation process.

Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending. City agencies are permitted to review a covered business' reasonable accommodation process and records to ensure it is handling requests promptly and appropriately.

In addition to the FAQs, New York City provides Guidance on Accommodations for Workers that includes EEOC factors on what constitutes an undue hardship. Furthermore, the guidance includes checklists that can serve as a record for any exemptions or accommodations that are granted.

Notably, the checklists include the following potential results of the accommodation request:

• Weekly PCR testing for COVID-19 and masking at all times when not eating or drinking. Any eating or drinking must occur at least six feet away from others.
• Telework or remote work that does not expose others to the accommodated workers.
• Leave of Absence
• No accommodation is granted because the unvaccinated worker would likely pose a direct threat to themselves or others.
• No accommodation is granted because accommodation presents an undue burden on the employer.

Finally, the New York City Commission on Human Rights issued guidance regarding reasonable accommodations. Significantly, the City Commission provides the following advice regarding responding to reasonable accommodation requests:

• Employers may ask employees seeking a disability accommodation for a note from their medical provider.
• Employers may not ask employees seeking a religious accommodation for supporting documentation unless the employer has an objective basis to question the sincerity of the religious belief. However, employers are permitted to ask employees to explain the religious nature of their belief.
• Employers may ask employees seeking an accommodation based on their status as a victim of domestic violence, sex offenses, or stalking for a note from a social worker, attorney, doctor, etc. supporting their inability to show proof of vaccination.

Posting of Compliance Affirmation and Recordkeeping

Once in compliance, employers must sign the NYC affirmation attesting that they are in compliance and place it in a clearly visible area of their business by no later than December 27, 2021. For businesses with multiple locations, each individual location must post the NYC affirmation.

Covered businesses are responsible for keeping a record of any reasonable accommodations that were approved based on religion or medical condition for workers who do not get vaccinated. The record must include when the employer granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation.

For businesses with multiple locations, worker vaccinations and reasonable accommodation records may be stored in one central location. In this case, each business location should have contact information available to offer city inspectors to put them in touch with the business representative who is centrally storing such records for the business.

Next Steps

Employers should promptly take the following steps to comply with the order:

• Notify employees of the need to get vaccinated so that unvaccinated individuals have sufficient time to schedule a vaccination appointment by December 27, 2021.
• Provide appropriate paid leave to employees receiving vaccinations in accordance with the March 2021 amendments to the New York Labor Law (see our prior advisory on this law).
• Instruct employees to submit proof of vaccinations promptly.
• Take precautions to maintain vaccination records as confidential employee medical information.
• Implement a plan to process accommodation requests; including by training managers on the order's requirements and instructing them to contact Human Resources or other employees at the company responsible for dealing with accommodation requests.
• Ensure compliance with other COVID-related laws, including, but not limited to, the HERO Act, the New York quarantine leave law and the recent state mask mandate order.
• Prepare to make records available for inspection upon request by a city agency.

We will provide further updates as more information becomes available regarding the vaccination order, including whether Mayor-Elect Adams will continue this order upon becoming Mayor on January 1, 2022.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.