May 24, 2022

Volume XII, Number 144

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May 23, 2022

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NYC Issues Guidelines on Private Sector Vaccine Mandate

On December 6, 2021, New York City Mayor Bill DeBlasio announced a COVID-19 vaccine mandate for all New York City private-sector employees, the first mandate of its kind for a major U.S. city. On December 15, 2021, New York City issued guidelines relative to the mandate. Beginning December 27, 2021, employees in New York City who perform in-person work or interact with the public must show proof that they have received, at a minimum, the first dose of a primary series (Pfizer or Moderna) or a single-dose COVID-19 vaccine. Employees will then have 45 days to show proof of their second dose for Pfizer or Moderna vaccines. Employers are required to post a signed affirmation of compliance with the vaccine mandate by December 27, 2022. This mandate applies to all employers, regardless of size.

Employers may not allow any unvaccinated employees to report to their physical workplace, unless they have requested and received an accommodation. A physical workplace is considered any location where an employee works in the presence of at least one other person. Unvaccinated employees may enter their physical workplace briefly and quickly for a limited purpose, e.g., to use the restroom, make a delivery, or clock in and receive an assignment before leaving to begin a solitary assignment.

Acceptable Proof of Vaccination

  • CDC vaccination card, including a digital photo or photocopy of the card.

  • NYC vaccination record or other official immunization record, including a record provided by a health care provider.

  • Information on one of three apps:

    • NYC COVID SAFE, with uploaded photo of a CDC vaccination card or other official record along with photo ID

    • CLEAR Health Pass for persons 18 and older who are fully vaccinated

    • Excelsior Pass.

Maintaining Vaccine Records

Employers must have a plan in place to maintain employee vaccination records and to process requests for reasonable accommodations. The records must be kept confidential and be available for inspection upon request by a city agency. Employees that have previously provided proof of vaccination do not need to present it again, so long as the employer has maintained a record.

There are three options for compliance with the record keeping requirement:

  • A copy of an employee’s proof of vaccination or a record of a reasonable accommodation with supporting documentation

  • A paper or electronic record that includes the following information:

    • Employee’s name

    • Whether the employee is fully vaccinated

    • If not fully vaccinated, the date by which the employee should present proof of a second dose; this date should be no later than 45 days after submitting proof of the first dose

    • Record of a reasonable accommodation with supporting documentation

  • Daily checks of each employee’s proof of vaccination before they enter the workplace each day. (If this approach is taken, employers must keep a record of each daily verification.)

For non-employee workers, such as contractors, businesses may request that the contractor’s employer confirm proof of verification of vaccination and then keep a log of the requests made and confirmations received.

Exceptions to the Vaccine Mandate 

While the vaccine mandate applies to all private sector employers of all sizes, there are a few exemptions:

  • Employees who work alone – at home or otherwise – and do not have in-person contact with co-workers or others in the course of their business

  • Employees who enter a workplace briefly for a limited purpose (see examples above)

  • Employees who have requested reasonable accommodations for medical or religious reasons (If an accommodation is granted, employers must record the basis for the accommodation and maintain supporting documentation.)

  • A performing artist or athlete who does not have to display proof of vaccination pursuant to the Key to NYC program

Reasonable Accommodations

Employees may request reasonable accommodations to this mandate if they are unable to take the vaccine due to disability, pregnancy, childbirth, lactation, religious beliefs or observances, or status as a victim of domestic violence, stalking or a sex offense. All reasonable accommodation requests must be submitted by December 27, 2021, for an employee to continue working unvaccinated at their job site. Employers may allow employees who have requested an accommodation to enter the workplace while the request is pending.

Employers must keep records of documentation regarding the basis for any accommodations granted for employees and any attendant documentation provided by the requesting employee, such as a doctor’s note or documentation attesting to a sincerely held religious belief. The City has provided employers with guidance on how to handle accommodation requests. Employers can demonstrate proper handling of requests by following and keeping a written record of the checklist provided in this guidance. Like all reasonable accommodation requests, the employer must engage in the interactive process to determine whether the accommodation requested would cause an undue hardship on the employer.

Notably, if an employee refuses to comply with the vaccine mandate, the guidelines require only that employers deny the employee entry into the physical workplace. Employers have discretion to discipline and/or terminate the employment of noncompliant employees or to permit them to continue to work remotely.

Employees may have general objections to vaccination that do not require a reasonable accommodation. When faced with employees who do not want to comply with the vaccine mandate, employers should take such concerns seriously and discuss with each employee why the employee refuses to be vaccinated and how vaccinations will make for a safer workplace. If unable to encourage employees to comply with the mandate, employers may be able to terminate the employee’s employment. Such decisions should be made on a case-by-case basis with the assistance of legal counsel.

© 2022 Wilson ElserNational Law Review, Volume XI, Number 355
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About this Author

Laura Stutz Labor & Employment Litigation Attorney Wilson Elser Law Firm
Counsel

Laura Stutz practices in the area of employment law counseling and litigation. She represents management in the hospitality, retail, financial services and health care industries, including hospitals and hospital systems, nursing homes, clinical laboratories, acute care centers and retail pharmaceuticals. Laura’s practice involves counseling employers on employment laws and employee benefit issues arising under ERISA. She also litigates on behalf of management in state and federal courts and before administrative agencies over disputes involving claims of discrimination...

973.735.1461
Joanna Colacurcio Employment Lawyer Wilson Elser
Associate

Joanna Colacurcio represents and advises employers on a broad range of employment and labor law matters. She represents employers in federal and state court litigation and before administrative agencies in a variety of matters arising from the employment relationship, including discrimination and retaliation, harassment, whistleblower claims, wage and hour disputes, unfair labor practices, restrictive covenants, and employment-related tort and contract disputes. Joanna also defends employers and individuals against claims of sexual harassment in the workplace and the educational...

212.915.5525
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