Compliance Snapshot

Beginning December 27, 2021:

  • New York City employees must provide proof of vaccination against COVID-19 to their employer;
  • Employers must exclude from the workplace any employee who fails to provide proof of vaccination unless an exception due to a reasonable accommodation applies;
  • Employers must collect employees’ proof of vaccination status;
  • Employers must comply with the notice posting requirement. 

New York City (NYC) has released much anticipated guidance on its new citywide workplace vaccine mandate previously announced on December 6th by Mayor De Blasio. Pursuant to the Order of the City’s Commissioner of Health and Mental Hygiene (DOHMH) in response to the ongoing public health emergency, NYC is requiring workers in the private sector to provide proof of vaccination against COVID-19 before entering the workplace. This article provides an overview of key aspects of guidance and highlights requirements immediately impacting NYC employers who are tasked with compliance at their workplace. The vaccine mandate takes effect on December 27, 2021.

Covered Employers/Businesses

The Order only applies to workplaces in NYC and therefore covers any employer that employs at least one worker in the city. The order defines a “workplace” as any place where work is performed in the presence of another worker, or a member of the public. NYC has made clear that covered employers who are subject to federal requirements that are not currently in effect because of a court issued stay must comply with this NYC order.

Coworking Spaces

The guidance addresses coworking spaces (such as WeWork) and has stated that they are covered under the order. This means that employers must check each individual worker’s proof of vaccination when they rent that workspace to individuals. Covered employers/businesses renting workspace in a coworking space are ultimately responsible for verifying and maintaining the appropriate vaccination records for their employees. The NYC guidance also provides the following useful instructions for coworking spaces:

  • Coworking spaces where small companies rent space regularly can instead request that a small company confirm that all of their workers entering the shared workspace are vaccinated;
  • The coworking space does need to keep a record of these requests, and the companies’ confirmations that their workers are vaccinated;
  • The coworking space must additionally post the official attestation sign (discussed further below) confirming compliance with the Order in a conspicuous location at each coworking space.

Covered Employees/Workers

The Order applies to all full-time and part-time employees, interns, volunteers, and contractors at a NYC workplace (where the worker lives is not relevant to the Order). The Order does not apply to fully remote employees or those who are alone at a worksite.

Contractors at the Workplace

The guidance states that while employers are required to check proof of vaccination for contractors visiting their workplace, they may instead request that the contractor’s employer confirm that the contractor is vaccinated. However, covered employers still need to keep a record of their request to the contractor’s employer and confirmation that the contractor is vaccinated.

Full Vaccination Requirement

Beginning December 27th, all workers in NYC 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. The guidance provides the following examples of quick and limited purpose: using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.

Employees will have up to 45 days to receive their second dose of a two-dose vaccine. Covered employers/businesses are required to exclude from the workplace all workers who have not met this requirement, with the exception of individuals who have requested reasonable accommodations for medical or religious belief.

Exceptions and Reasonable Accommodations (Medical Condition or Sincerely Held Religious Belief)

Employees who have a sincerely held religious belief, or a medical condition that prevents them from being vaccinated may apply for an exemption from the Order through a reasonable accommodation. The employee must apply for a reasonable accommodation by December 27, 2021, which begins the reasonable accommodation process. Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending.

NYC has provided guidance on how to handle reasonable accommodation requests as well as a checklist that employers can use to process them. According to the guidance, if an employer chooses to follow this checklist and keeps it on file, that will demonstrate the employer handled the reasonable accommodation request appropriately.

Vaccine Documentation Requirements

All employees must show proof of vaccination, unless an exception applies. Sufficient forms for proof of vaccination include:

  • A photo or hard copy of CDC vaccination card;
  • NYC COVID Safe App;
  • New York State Excelsior Pass;
  • CLEAR’s Digital Vaccine Card, CLEAR Health Pass;
  • Official vaccine record;
  • 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.

Refusal to Show Proof of Vaccination

If an employee subject to the Order is in the workplace for more than a quick and limited purpose, and has not applied for a reasonable accommodation, then employers must not allow them to enter the workplace. Employers are not required to terminate an employee that refuses to show proof of vaccination; however, pursuant to the order, covered employers ae required to keep that individual out of the workplace and it is up to employer discretion whether to discipline or terminate the employee, or consider whether that employee can contribute to the business while working remotely.

Employer Recordkeeping Requirements

Any vaccination information should be collected and stored in a secure manner to ensure the privacy and security of the information is protected. Such information should only be accessed by employees or other individuals who have a legitimate need to access such information for purposes of compliance with the Order, or other governmental orders, laws, or regulations. Vaccination information should not be used for any other purpose. Each business location should have contact information available to offer to NYC inspectors to put them in touch with the business representative who is storing such records for the business.

Notice Posting Requirements

The DOHMH has created a one-page attestation that doubles as a sign that employers must fill out and post in a conspicuous location at their place of business by December 27, 2021. The attestation sign affirms that the employer is complying with the order. Employers must post this official attestation sign even if they previously had their own signage about employee vaccination status (with the exception if the employer previously posted a notice per the existing Key to NYC requirements).

The official DOHMH attestation sign is available in multiple languages online at www.nyc.gov/vaxtowork.

Enforcement and Penalties for Non-compliance

NYC has stated that inspectors from various agencies will begin enforcing the order on December 27, 2021. If a business refuses to comply, they are subject to a fine of $1,000 and escalating penalties thereafter if violations of the order continue.

Employer Considerations

Given that the December 27th compliance deadline is fast approaching, NYC employers are encouraged to take the following actions:

  • Update any existing in-person workplace vaccination policies in light of the new Order;
  • Develop a process for accommodation requests and for collection/ proper storage of vaccination records;
  • Notify employees of the Order and about the employer’s policy;
  • Post the required notice.

Additional Resources

Lizet Ramirez — Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.