July 2, 2022

Volume XII, Number 183

Advertisement
Advertisement

July 01, 2022

Subscribe to Latest Legal News and Analysis

June 30, 2022

Subscribe to Latest Legal News and Analysis

June 29, 2022

Subscribe to Latest Legal News and Analysis

New York City COVID-19 Vaccine Mandate: Here Are the Details

On December 13, 2021, New York City’s Commissioner of the New York City Department of Health and Mental Hygiene (DOHMH), Dr. Dave A. Chokshi, published an order (the Order) requiring private employers to impose COVID-19 vaccine mandates upon all in-person employees within New York City, with limited exceptions, as of December 27, 2021. DOHMH provided a series of FAQs and additional guidance on December 15, 2021. The Order follows Mayor Bill de Blasio’s December 6, 2021, announcement of this impending mandate.

IN DEPTH


Key points of the Order are as follows:

BASIC REQUIREMENT

Beginning December 27, 2021, covered employers must publicly post an affirmation of compliance with the Order’s requirements, and they must not permit any employees from entering their workplace unless the employee provides proof of having received at least one dose of a COVID-19 vaccine. Proof of the second dose must come within 45 days (i.e., by February 10, 2022).

Limited exceptions to this requirement are described below. The Order is silent as to COVID-19 testing, as this would not satisfy the Order’s requirements.

COVERED EMPLOYERS

“Covered entities” are those responsible for ensuring their employees are vaccinated in accordance with the Order. This includes entities that employ more than one worker within New York City or who maintain a workplace in New York City. This also includes self-employed individuals.

The Order extends to rideshare drivers as well as entities that operate coworking spaces which are responsible for ensuring proof of vaccination for individuals who rent a portion of the coworking space (though commercial landlords are not considered “covered entities” except with respect to their own employees).

COVERED EMPLOYEES

All employees who perform work within New York City, and who come into contact with at least one other individual as part of that work (e.g., colleagues, customers, patrons, visitors, etc.), are covered by the Order’s requirements.

EXCEPTIONS

The Order does not apply to:

  • Employees who enter the employer’s workplace for only a “quick and limited” purpose (e.g., using the bathroom, making a delivery or punching in and then promptly departing);

  • Remote employees, or those who may come to an in-person workplace but do not come in contact with any colleagues, customers, clients, visitors or others during their work;

  • Employees who are entitled to reasonable accommodations (DOHMH published guidance for employers on accommodating workers under the Order); and

  • Workers who are not residents of New York City and who are performing artists, college/university or professional athletes, or individuals accompanying these workers, who are not obligated to provide proof of vaccination under the current Key to NYC mandates.

ENFORCEMENT AND PENALTIES

The Order will be enforced by New York City inspectors from various New York City agencies. Fines begin at $1,000 for noncompliance. However, the FAQs emphasize that the goal is to work with businesses to be compliant and “avoid fines and penalties.”

COORDINATION WITH STATE AND FEDERAL REQUIREMENTS

New York State Commissioner of Health Mary T. Bassett issued a statewide mask-or-vaccine mandate, effective December 13, 2021, requiring masks to be worn in all indoor public spaces unless the business or venue has implemented a vaccination requirement. (FAQs on the statewide vaccination-or-mask mandate can be found here.) Given the New York City “universal” employment-based vaccination mandate, employers and employees in New York City will be required to follow the vaccination mandate without a masking alternative, subject to the exceptions described above. The state’s mask-or-vaccine mandate is scheduled to last until January 15, 2022, when its necessity will be reassessed.

LOOKING AHEAD

New York City Mayor-elect Eric Adams will be taking office on January 1, 2022, just five days after New York City begins to enforce this Order. Mayor-elect Adams has declined to comment publicly as to whether he plans to maintain this mandate once he assumes office. In the past, Mayor-elect Adams has publicly supported the state’s more moderate “vax-or-mask” requirement.

© 2022 McDermott Will & EmeryNational Law Review, Volume XI, Number 350
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY
Associate

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

212 5475672
Dawn M. Peacock Attorney Employment Law McDermott Will Emery Chicago
Associate

Dawn M. Peacock is an employment advisor and litigator. She regularly defends employers in all phases of single-plaintiff and class action litigation in state and federal court. Dawn also regularly handles employment-related agency matters. Her practice focuses on discrimination and retaliation. She has particular experience with claims brought under the ADA, ADEA, Illinois Biometric Information Privacy Act and data protection laws.

Dawn’s pro bono practice includes directing diversity efforts with a focus on addressing individuals who are...

312-803-7030
Lindsay Ditlow Employment Attorney McDermott Will & Emery New York, NY
Partner

Lindsay Ditlow is experienced in all aspects of employment law, including litigation, counselling, and corporate transactions.

As a trial lawyer, Lindsay has successfully represented numerous clients in employment litigations, including cases involving claims under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Credit Reporting Act, the Family Medical Leave Act and state leave laws, the Inevitable Disclosure Doctrine, state discrimination and retaliation statutes, the Fair Labor Standards Act, and state wage and hour laws.

...

212-547-5425
Michelle S. Strowhiro
Partner

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...

310-788-1571
Advertisement
Advertisement
Advertisement