New York City has enacted an Order that establishes worker COVID-19 vaccination requirements, creates recordkeeping obligations, and includes a posting requirement. The Order took effect on December 27, 2021.
The Details:
All private-sector employers in New York City must verify that their employees are vaccinated against COVID-19.
Covered Workers:
All workers in New York City that perform in-person work or interact with the public while conducting business must show proof that they received at least one dose of a COVID-19 vaccine, starting December 27, 2021. This includes requiring non-employee workers, such as contractors, to provide vaccination proof to their employers.
Note: The Order does not apply to covered entities or individuals that are already subject to another Order of the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that requires them to maintain or provide proof of full vaccination. Entities covered by the OSHA ETS rule that allows either employee vaccination or testing must still comply with this order and require workers to be vaccinated if they do not have a reasonable accommodation.
Workplace Vaccination Requirement:
Workers in New York City that perform in-person work or interact with the public while conducting business must show proof that they received at least one dose of a COVID-19 vaccine, starting December 27, 2021. After which, workers who received a first dose of a two-dose vaccine will have 45 days to show proof of their second dose.
Under the Order, businesses may request that a contractor’s employer confirm proof of vaccination. Those that do so must keep a log of the requests and confirmations.
Note: Workers are prohibited from submitting a weekly negative COVID-19 test as an alternative to getting vaccinated.
Prohibited Actions:
Businesses are prohibited from allowing an unvaccinated worker to come to the workplace. This includes a vehicle if an employee works in the presence of at least one other person.
Verifying Worker Vaccinations:
Employers must verify each worker’s proof of vaccination. This may be done using the proofs of vaccination that are accepted for Key to NYC (A photo or hard copy of a CDC vaccination card, NYC COVID Safe App, New York State Excelsior Pass, CLEAR’s Digital Vaccine Card, CLEAR Health Pass, Official Vaccine Record, or a photo or hard copy of the official vaccination record of a vaccine administered outside the U.S. for one of the following vaccines: AstroZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac).
Employers may verify an employee’s proof of COVID-19 vaccination by either:
- Having a copy of a worker’s proof of vaccination or a record of reasonable accommodation with supporting documentation;
- Checking each worker’s proof of vaccination before they enter the workplace each day and keeping a record of each verification; or
- ·Creating a paper or electronic record for each worker that includes the worker’s name, whether the worker is fully vaccinated, and a record of reasonable accommodation with supporting documentation. The record for workers who submitted proof of their first dose must also contain the date by which the employee can provide proof of a second dose (no later than 45 days after submitting proof of the first dose).
Recordkeeping Requirement:
Employers must treat all records that are created or maintained as confidential and be prepared to make their records available for inspection, as required by law.
Notice Requirement:
Employers must complete and post in a public place a certificate that affirms they are in compliance with the Order. This must be done by December 27, 2021.
Exceptions:
The Order does not require employers to collect proof of COVID-19 vaccination for people that:
- Work alone (at home or otherwise) and who do not have in-person contact with co-workers or others while conducting business;
- Enter the workplace briefly for a limited purpose (for example: using the restroom);
- Are non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them; or
- Have requested reasonable accommodations for either medical or religious reasons.
Reasonable Accommodation:
Workers who have a sincerely held religious belief (not a social or political belief) or a medical condition that prevents them from being vaccination may apply for a reasonable accommodation. Workers who request such an accommodation must do so by December 27, 2021. While a reasonable accommodation request is pending, employers may permit workers to continue coming into the workplace.
New York City published checklists to guide employers in evaluating requests for reasonable accommodations, which can be found here. New York City has stated that employers who complete checklists to evaluate accommodation requests should maintain copies to serve as a record for any exemptions or accommodations that are granted.
Note: With regard to religious exemption requests, New York City published a form that includes questions an employer may ask of employees to determine the sincerity of their religious accommodation request. Employers should review the questions included on the form with their legal counsel to ensure they comply with other antidiscrimination laws that may apply to the employer, such as Title VII and the New York State Human Rights Law.
Penalties:
Employers who refuse to comply may be subject to a fine of $1,000 and escalating penalties thereafter if the violations persist.
Next Steps:
New York City employers should consult with legal counsel to discuss the impact of the Order on their vaccination policies and practices and review the FAQs sheet provided by the City.
For further help with the Order, small businesses may call the NYC Department of Small Business Services hotline (888-727-4692) or visit COVID-19 Commissioner Orders and Advisories to review existing vaccine requirements that may impact their business or employees.
Please contact your dedicated service professional with any questions.