New York City (“NYC” or the “City”) recently announced that it would be the first U.S. city to require COVID-19 vaccination for its private sector employees.

On December 13, 2021, the NYC Commissioner of Health and Mental Hygiene, Dave A. Chokshi, MD, MSc, issued an Order setting forth the requirements of the mandate.  Two days later, the City provided answers to frequently asked questions (FAQ’s) relating to the mandate and the attendant employer expectations.  Below are key points addressed by both the Order and FAQ’s:

Covered Entities & Individuals

The Order applies only to workplaces in NYC.  “Covered entities” include (1) any non-governmental entity that employs more than one worker or maintains a workplace in NYC; or (2) a self-employed individual or a sole practitioner who work at an NYC workplace, interact with other workers in-person, or interact with the public in-person in the course of their work.  A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.  A “worker” means a full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity. As set forth below, non-employee workers, such as contractors, must also comply with the Order.

Proof of Vaccine Requirements

Beginning December 27, 2021, all NYC workers must provide proof that they have received at least one dose of a COVID-19 vaccine.  Workers will then have 45 days to show proof of their second dose (for the Pfizer or Moderna vaccines).

Sufficient proof of vaccination may be demonstrated by displaying one of the proofs of vaccination below, and a form of identification.

  1. A photo or hard copy of their CDC vaccination card;
  2. NYC COVID Safe App;
  3. New York State Excelsior Pass;
  4. CLEAR’s Digital Vaccine Card, or CLEAR Health Pass;
  5. Official vaccine record; or
  6. 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.

Workers Without Proof of Vaccination

Workers who do not provide proof of vaccination must be excluded from the workplace, unless an exception due to a religious or medical accommodation applies, or a worker enters the workplace only for a quick and limited purpose.  Examples of a quick and limited purpose include: using the restroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.

Non-employee Workers

Non-employee workers, such as contractors, must provide proof of vaccination to their workplace.  Businesses that hire contractors through an agency or company may request that the contractor’s employer confirm proof of vaccination.  Businesses must then keep a log of these requests and the confirmations they receive.

Recordkeeping

Businesses must verify and keep a record of each worker’s proof of vaccination by December 27, 2021. There are three ways that businesses can meet this requirement:

  1. A worker’s record can be a copy of their proof of vaccination or a record of a reasonable accommodation with supporting documentation.
  2. Businesses can create their own paper or electronic record that includes the following information for each worker:
    1. The worker’s name;
    2. Whether the worker is fully vaccinated;
    3. For workers who submitted proof of the first dose of a two-dose vaccine, the date by which they can provide proof of a second dose (no later than 45 days after submitting proof of the first dose); and
    4. If applicable, the record of reasonable accommodation with supporting documentation.
  3. Businesses may check each worker’s proof of vaccination before they enter the workplace each day. Business that choose this option must keep a record of each verification.

Per the NYC guidance, businesses should be prepared to make their records available for inspection.  Additionally, all vaccination information should be collected and stored securely to ensure that the privacy and security of the information is protected.  Vaccination information should only be accessed by employees or individuals who have a legitimate need to access such information for purposes of complying with the Order, or other orders, laws, or regulations.  Vaccination information should not be used for any other purpose.

Reasonable Accommodations for Workers with Sincerely Held Religious Beliefs or Medical Conditions

Workers who have a sincerely held religious belief (not a social or political belief), or a medical condition that prevents them from being vaccinated may apply for a reasonable accommodation.  Such workers must apply for a reasonable accommodation by December 27, 2021, and that begins the reasonable accommodation process.  Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending.  While the request is pending, City agencies may review an employer’s reasonable accommodation process and records to ensure that requests are being handled promptly and appropriately.  The City has also issued guidance on how to handle reasonable accommodation requests as well as a checklist that employers can use to process such requests.  If an employer follows this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.

Coworking Spaces

Coworking spaces are covered by the Order, and must check each individual worker’s proof of vaccination when they rent space to individuals.  Coworking spaces that regularly rent space to small companies can instead request that the company confirm that their workers (that will be entering the shared workspace) are vaccinated.  However, the coworking space must keep a record of these requests, and the companies’ confirmations.  The coworking space must also post the Affirmation of Compliance, set forth below.

Affirmation of Compliance

By December 27, 2021, all covered entities must complete the Affirmation of Compliance with Workplace Vaccination Requirements affirming they are in compliance with the Order and post the affirmation in a public place.  This official attestation must be posted even if the entity previously had its own signage about employee vaccination status.

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