NYC issues employer vaccine mandate

On December 6, New York City announced that beginning December 27 it would require all private employers to require their employees to show proof of COVID-19 vaccination before entering the workplace. Since the announcement, the commissioner of the Department of Health and Mental Hygiene (DOHMH) and the NYC Department of Health have issued an order ("Order") and subsequent guidance ("Guidance") on the specifics of the mandate including who is covered and what obligations are facing employers. 

The Order and the Guidance generally require that private-sector workers provide proof of their first dose of the COVID-19 vaccine to their employers by December 27, 2021. These individuals must show proof of their second dose, as applicable, within 45 days of when they submitted proof of their first dose, and by no later than February 10, 2022. Employers must exclude any worker who has not provided proof of vaccination from the workplace, unless the employee is granted an exemption based on religious or medical needs. Other than exclusion from the worksite, the Order does not require that an employer discipline any employee who refuses to comply with the Order, if the employer does not wish to do so.

Who is covered? 

People who work in-person in any location in NYC (including a vehicle) where they are in the presence of another are covered by the order.

Workers who work remotely and do not interact with others in the course of their work and workers who only enter the workplace for a quick and limited purpose are not required to show proof of vaccination.

Any non-government business that employs more than one worker in NYC or maintains or operates a workplace in NYC where work is performed in the presence of another is a covered entity under the order. Sole practitioners or individuals who are self-employed are not required to comply with the order so long as they do not work in a covered workspace (such as a co-working office) or interact with others in-person in the course of their work. 

The order does not apply to any business or worker who is covered by another city, state, or federal requirement to maintain or provide vaccination status. However, those covered by a federal order that is currently not in effect because of a court order, such as the federal contractor vaccine mandate or OSHA’s Emergency Temporary Standard, must comply with this order. 

What must employers do now?

By December 27, covered employers must:

  • verify vaccination status of employees;
  • obtain all requests from employees seeking an exemption from the order;
  • fill out and post in a conspicuous location this attestation created by DOHMH, which affirms that the employer has read the order and that the workplace is in compliance;
  • confirm the vaccination status of third party contractors visiting the worksite. 

How must employers verify vaccination status?

Employers must verify their workers’ proof of vaccination by reviewing either (i) a photo or physical copy of their CDC vaccination card; (ii) their NYC COVID Safe App; (iii) their New York State Excelsior Pass; (iv) CLEAR’s Digital Vaccine Card or CLEAR Health Pass; (v) an official vaccine record; or (vi) a photo or hard copy of an official vaccination record of the vaccine administered outside the United States.

As part of the verification process, employers must also review a form of identification. Acceptable forms of identification include (i) a driver’s license, (ii) a non-driver government ID, (iii) an IDNYC card, (iv) a passport, or (v) a school or work ID card. 

Employers must maintain a record of each worker’s proof of vaccination by either making a copy or taking a picture of their proof of vaccination or creating a paper or electronic record that records the worker’s name, their vaccination status, and the date a second dose will be provided, as applicable. This information should be treated as confidential and should be collected and maintained in a secure manner, but be readily available in the event of an inspection.

An employer that has already implemented a vaccination verification process and has the records required by the order does not need to reverify their workers’ vaccinations.

Employers must also confirm the vaccination status of contractors visiting their worksite. This may be done by verifying their vaccination status in the same way employers verify their own workers or by requesting that the contractor’s employer confirm the contractor’s vaccination status. Although an employer does not need to maintain a record of a contractor’s vaccination status, if they request that their employer complete the verification process, the employer must keep a record of that request and the subsequent confirmation provided by the contractor’s employer.

What are the exemptions? 

Employees may request a reasonable accommodation if they have a sincerely held religious belief or a medical condition that prevents them from being vaccinated. These requests must be made by no later than December 27, 2021

Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending. However, city agencies may review a covered entity’s reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately.

NYC Health has provided a checklist on how employers should handle accommodation requests. If an employer follows this checklist and keeps it on file, this will demonstrate that the employer handled the reasonable accommodation request appropriately.

If an employee is granted a reasonable accommodation, employers must keep a record of the accommodation granted to the worker. Accommodations could include permitting the worker to test weekly in order to enter the worksite or allow the worker to work remotely. The record should include (i) when the reasonable accommodation was granted, (ii) the basis on which the accommodation was granted, (iii) the nature of the accommodation (i.e. temporary or permanent), and (iv) any supporting documents. 

When evaluating exemption requests, employers should be sure to evaluate each request in accordance with applicable law and treat all similarly situated employees the same so as to mitigate the risk of claims of discrimination.

How will the Order be enforced? 

Beginning December 27, various city agencies will be enforcing the Order through inspectors seeking compliance. NYC Health has not indicated what, if any, penalties will be levied as a result of non-compliance. They have provided that it is their primary goal to educate and work with businesses to maintain compliance and to avoid fines and penalties.  

Nonetheless, employers should take care to comply with the order now by communicating the vaccination requirement to their employees and establishing verification and record maintenance processes and procedures that comply with the order. If you have questions regarding how the order impacts your workplace or need assistance in implementing the requirements under the order, please contact an author of this post or the Hogan Lovells lawyer with whom you typically work.



Authored by Michael DeLarco, Zach Siegel, and Shannon Finnegan.*

*Shannon Finnegan is a Law Clerk in the New York office. 

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