As we previously reported, effective December 27, 2021, all private sector employers in New York City will be required to implement a mandatory vaccination policy for their workers. Today, guidance was issued clarifying this new mandate and related employer obligations. We have summarized what you need to know about this guidance below.

Clarification on the vaccination requirement

By December 27, employers must require all workers to provide proof that they have received at least one dose of a COVID-19 vaccine. (For the purposes of this mandate, a “worker” is a full- or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered entity.) Employers will be required to verify and maintain a record of each worker’s proof of vaccination. In addition, by December 27, employers must complete an affirmation of compliance with this requirement and post it in a public place.

By February 10, 2022, employers must require that all workers provide proof that they have received a second dose of a COVID-19 vaccine (for Pfizer or Moderna vaccines). If such proof is not provided, the worker must be excluded from the workplace until they can provide such proof, unless an exception applies (as detailed below).

In addition, the guidance confirms the following critical points:

• The mandate pertains to New York City workplaces and a worker’s residence is not relevant to its applicability.
• Employers are not required to fire or discipline workers who refuse to comply with this mandate. Rather, the guidance indicates that “[a]s long as you keep the worker out of the workplace, it is your decision whether to discipline or fire such worker, or if the worker can contribute to your business while working remotely.”
• Employers with multiple business locations must post the affirmation of compliance in a conspicuous location in each business location. However, vaccination and reasonable accommodation records may be stored in one central location, provided that each business location has contact information available to offer to City inspectors to put them in touch with the business representative who is centrally storing such records for the business.
• Employers may adopt a vaccination policy that is stricter than the requirements of the New York City order, as long as it is not discriminatory or otherwise unlawful.
• Coworking spaces must comply with this mandate vis-à-vis their renters.

Exceptions for worker entry for a “quick and limited purpose” and sole proprietors

The guidance sets forth exceptions to this requirement for workers who enter the workplace for a “quick and limited purpose” – for example, using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment. However, if a worker will be in the workplace for more than a quick and limited purpose and has not applied for a reasonable accommodation, then they may not enter the workplace. In addition, the guidance confirms that individuals who are self-employed or sole proprietors are not required to comply with this mandate unless they work at a workplace, interact with other workers, or interact with the public in the course of their work.

Proof of vaccination

New York City employers may collect and maintain proof of vaccination for their workforce in one of the following ways:

1. Copying the proof of vaccination or a record of a reasonable accommodation with supporting documentation.
2. Creating their own paper or electronic record including (i) the employee’s name, (ii) whether (s)he is fully vaccinated, (iii) for employees 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 (iv) a record of a reasonable accommodation with supporting documentation.
3. Checking each employee’s proof of vaccination before they enter the workplace each day and keeping a record of each verification.

The guidance confirms that vaccination information should be collected and stored securely 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 and should not be used for any other purpose.

Accommodations for medical and religious reasons

Workers who have a medical condition or sincerely held religious belief that prevents them from being vaccinated may apply for a reasonable accommodation. This application must be made by December 27. Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending. To assist businesses with the handling of such requests, New York City issued guidance on worker accommodations that includes checklists employers can use to process such requests.

Employers must maintain records of all approved accommodation requests that include when the request was granted, the basis for granting the request, and any supporting documents.

Applicability to independent contractors

New York City businesses are required to check proof of vaccination for contractors visiting their workplaces who are employed by another company, but businesses are not required to keep a record of the contractor’s vaccination status. Instead, businesses may request that the contractor’s employer confirm that the contractor is vaccinated and maintain a record of the request and the contractor’s employer’s confirmation that the contractor is vaccinated.

 Enforcement and penalties

Inspectors from various City agencies will begin enforcing the order on December 27. Businesses that refuse to comply with this mandate may be subject to a fine of $1,000 and additional penalties if violations persist.