In conjunction with New York City’s recent employer vaccine mandate, the New York City Commission on Human Rights (NYCCHR) issued enforcement guidance on the equitable implementation of COVID-19 vaccine requirements for employees, independent contractors, and interns.

Non-discriminatory application of vaccine policies

In its guidance, the NYCCHR underscored that employers must ensure their policies and practices treat all employees evenly, regardless of protected class status, when implementing vaccine requirements. Specifically, the guidance advises that employers should not (i) scrutinize proof of vaccination more closely when it is provided by employees of a particular race, national origin, or religion based on the perception that people in those groups are less likely to be vaccinated; (ii) require proof of vaccination only for older employees or employees with disabilities based on the belief that COVID-19 is more dangerous for them; or (iii) refuse to accept certain types of valid proof of vaccination, such as official immunization records from other countries or photographs of Centers for Disease Control and Prevention (CDC) vaccination cards.

The guidance reiterates that employers are prohibited from retaliating against employees because they requested an accommodation, opposed discrimination, or filed or assisted with a claim under the New York City Human Rights Law (NYCHRL).

Guidelines on reasonable accommodations for the unvaccinated

The guidance confirms that employers must consider accommodation requests based upon disability; pregnancy; childbirth; lactation; religious beliefs or observances; or status as a victim of domestic violence, stalking, or sex offenses. With respect to religious beliefs, the NYCCHR clarified that “the NYCHRL protects not only employees who belong to organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also employees who have religious, ethical, or moral beliefs that are sincerely held with the strength of religious views.” However, the NYCCHR confirmed that the law “does not protect social, political, or economic views, or personal preferences.” Practically speaking, this means that New York City employers will have to consider accommodation requests for a much broader range of reasons than is required under federal law and related Equal Employment Opportunity Commission (EEOC) guidance, which require accommodations for only medical and religious reasons.

The guidance further states that employers must engage in a cooperative dialogue with employees who request an exception to a vaccine requirement or additional time to provide proof of vaccination for one of the foregoing reasons. Per the guidance, examples of reasonable accommodations include remote work, regular COVID-19 testing, personal protective equipment, change in workstation or work schedule, or leave of absence.

Importantly, the NYCCHR provided guidelines on whether and when employers should request supporting documentation for an accommodation request:

  • Employees seeking an accommodation due to disability, pregnancy, childbirth, or lactation – Employers may request a note from their medical provider.
  •  Employees seeking an accommodation because of their status as a victim of domestic violence, sex offenses, or stalkingEmployers may request a note from a related service provider, such as a social worker, attorney, doctor, or clergy member.
  • Employees seeking an accommodation because of their religious beliefs – Employers should not request supporting documentation unless they have an objective basis to question the sincerity of the religious basis for the request. However, employees may be asked to explain the religious nature of their belief.

In reiterating that employers are not required to grant accommodations that cause a direct threat or otherwise impose an undue hardship on the employer, the NYCCHR identified the following examples of a direct threat: accommodations that would allow an unvaccinated employee to engage in a high-risk activity (such as yelling or exercising) while in close proximity to others, or to work in close proximity to high-risk individuals.

The guidance further explains that if there is no reasonable accommodation that would enable an unvaccinated employee to continue performing their job duties without posing a direct threat or an undue hardship, an employer may offer a leave of absence until the employee is able to provide proof of vaccination or until it is otherwise safe to return to work. Such leave may be unpaid unless the employer pays other workers who are unable to work for similar reasons.