New York City Releases Private Employer Vaccine Executive Order

New York City has released its anticipated vaccine order for private businesses alongside a workplace vaccine requirement webpage containing interpretative guidance and other helpful links.  The new vaccine order generally requires employers to obtain proof of a worker’s vaccination before allowing them entry into the workplace.  As we previously reported here, Mayor Bill de Blasio described this mandate as a “preemptive strike” made in an effort to confront looming challenges posed by the Omicron variant and the holiday season.  We summarize relevant portions from the order and interpretative guidance below, and note that NYC employers will need to take several affirmative actions to come into compliance in the next couple of weeks.

The Vaccine Order Covers Most Private Businesses and Workers.

The vaccine order covers a large swath of the City’s businesses.  Specifically, it covers all private employers that: (i) have more than one worker in New York City, or (ii) that maintain a workplace in New York City.  It also includes self-employed individuals or sole practitioners who work at a workplace or interact with workers or the public in the course of their business. 

The vaccine order extends to all “workers” of those businesses, which includes individuals who perform work in-person in New York City at a workplace—including any location and in a vehicle—where work is performed in the presence of another worker or member of the public.  Further, this definition includes all service providers on site, including full-time or part-time staff members, employees, interns, volunteers or contractors of the covered business. 

But certain individual are excluded from the “worker” definition and are thus not covered by the order, including:

1. Individuals who work at their own home and whose work does not involve interacting in-person with co-workers or members of the public;
2. Individuals who enter a workplace briefly, which the guidance explains could be entry to use a restroom, make a delivery, or clock-in and receive an assignment which the worker will complete alone or remotely; and
3. Those non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them who do not have to display proof of vaccination under the separate Key to NYC program (Executive Order No. 316). 

Further, the order does not apply to businesses and individuals in two other situations: 

1. The order does not apply where the business or individual is already subject to another vaccine order from “the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that is in effect” and “which requires them to maintain or provide proof of full vaccination.”  The guidance makes clear that businesses otherwise subject to Federal vaccinate orders (e.g. OSHA’s vaccine rule), are covered by this order to the extent such Federal orders are blocked by courts, which we previously reported on here.
2. The order also does not apply to individuals granted a reasonable accommodation from the proof of vaccination requirement, which we discuss later in this post. 

The Vaccine Order Requires Covered Workers to Show Proof of Vaccination or Businesses Must Exclude Them from Workplaces.

Beginning on December 27, 2021, workers in New York City must show proof of vaccination against COVID-19 before entering a workplace.  If the worker does not provide proof or have an accommodation from the proof requirement, a business must exclude them from its workplace. 

To be clear, workplace entry does not depend solely on a worker being “fully vaccinated” by December 27, 2021; rather, it depends on the worker being able to show “proof of vaccination” on or before that date.  This “proof of vaccination” can consist of one of three types of proof:

1. The worker has been fully vaccinated; 
2. The worker has received one dose of a single-dose COVID-19 vaccine; or
3. The worker has received the first dose of a two-dose COVID-19 vaccine, provided that such worker submits proof of receiving the second dose of that vaccine within 45 days after receiving the first dose. 

In other words, a worker may access the workplace not only where they are fully vaccinated, but also where (1) they are waiting the two weeks since receiving their last vaccination dose, but before they are considered “fully vaccinated,” or (2) they have received their first dose of a two-dose series, but have not yet received their second dose and are therefore not fully vaccinated.  Note, however, that this latter group must present proof that they received the second dose within 45 days of the first dose to continue gaining entry to the workplace. 

To confirm, “fully vaccinated” for purposes of compliance with this order means “at least two weeks have passed after an individual received a single dose of a COVID-19 vaccine that requires only one dose, or the second dose of a two-dose series of a COVID-19 vaccine approved or authorized for use by the Food and Drug Administration or World Health Organization, or any other circumstance defined by the Department in its guidance associated with this Order.”  To be clear, this definition does not capture, nor does the vaccine order address, booster shots. 

The Vaccine Order Provides Businesses with Different Options to Verify a Worker’s Proof of Vaccination.

By the December 27, 2021 effective date, businesses must verify each worker’s proof of vaccination in one of three ways:

1. The business may maintain a copy of each worker’s proof of vaccination, or if applicable, a record of a reasonable accommodation.  To do this, the business may make a copy or take a picture of the vaccination proof; OR
2. The business may create and maintain their own paper or electronic record of such proof of vaccination, which must include the following for each worker:
   • The worker’s name;
   • Whether the worker is fully vaccinated;
   • For workers who submitted proof of the first dose of a two-dose vaccine, the date by which they must provide proof of a second dose (no later than 45 days after submitting proof of the first dose); and/or
   • For a worker who does not submit proof because of a reasonable accommodation, a record indicating that the business provided such accommodation.  Separately, the business must maintain a record “stating the basis for such accommodation and any supporting documentation provided by such worker”; OR
3. The business may check each worker’s proof of vaccination before they enter the workplace each day, but they must also create and maintain a record of the verification.

The guidance interpreting the vaccine order accounts for the possibility that many businesses have already collected proof of vaccination and confirms that there is no need to go through this exercise again provided such prior collection satisfied the order’s requirements. 

The vaccine order and interpretative guidance also account for various other forms of workplaces and workplace relationships:

1. Where a covered business seeks proof of vaccination from a non-employee, such as a contractor, the vaccine order permits the business to request that the non-employee’s employer confirm the non-employee’s proof of vaccination, provided the business maintains a record of such request and confirmation. 
2. Co-working entities are covered entities and are required to check for proof of vaccination as follows:
   • For individual workers who rent space, the co-working space entity must comply with the proof of vaccination requirements with respect to each individual worker;
   • When a small business is renting space, the co-working space entity may instead seek confirmation from the small business that its workers entering the shared space are vaccinated.  
3. Commercial landlords who do not operate co-working spaces, however, are not required to check for proof of their tenants; they need only comply with respect to their own employees.

The Vaccine Order Details the Types of Proof of Vaccination That Businesses May Accept From a Worker.

The order states the workers may show the following as proof of vaccination:

1. A CDC COVID-19 Vaccination Record Card;
2. An official immunization record from the jurisdiction, city, state, or country where the vaccine was administered, or from a healthcare provider or other approved immunizer who administered the vaccine, that provides the person’s name, vaccine brand, and date of administration.
3. New York City COVID Safe App showing a vaccination record;
4. A valid New York State Excelsior Pass/Excelsior Pass Plus;
5. CLEAR Health Pass or CLEAR Digital Vaccine Card; or
6. Any other method specified by the Commissioner as sufficient to demonstrate proof of vaccination.

A digital photo or photocopy of a vaccination or other immunization record is an acceptable form of proof.  Further, for those vaccines administered outside the U.S., a photo or hard copy of an official vaccination record for one of the following vaccines is acceptable: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.

Although not in the vaccine order itself, the interpretive guidance notes that a business should ask the worker to present a form of identification to pair with the proof of vaccination, acceptable forms of which include:

1. Driver’s license
2. Non-driver government ID card
3. IDNYC card
4. Passport
5. School or work ID Card. 

A worker may also show a copy of the same, including a picture on their phone or by using an app (e.g. NYC COVID Safe). 

Businesses should collect and store vaccine information in a secure manner to ensure the privacy and security of the information, and limit access only to employees or other individuals who have a legitimate need to access such information.  Further, businesses with multiple locations may store the records in one central location. 

The Vaccine Order Requires Businesses to Affirm Compliance and Post Regarding Same.

Covered businesses must also complete a form affirming that they are in compliance with the vaccine order and post such affirmation in a conspicuous location by December 27, 2021.  A form affirmation can be found here.  For covered individuals who are self-employed or who are sole proprietors without fixed places of work or for those who work out of their vehicle, these individuals do not have to post the affirmation, but instead must keep proof of vaccination available.  Businesses with multiple locations must post the affirmation at each of their locations. 

The Vaccine Order Requires Businesses to Permit Workers to Apply for Reasonable Accommodations.

The order permits unvaccinated workers to access a worksite where they have an approved accommodation to be exempt from the proof of vaccination requirement.  Critically, the order requires workers who need a medical or religious-based exemption to request one by December 27, 2021.  The guidance confirms that businesses may permit workers to continue coming onsite while their request is pending, so long as requests are processed efficiently. 

If a worker does not become vaccinated because the business approved the exemption request, the business must maintain the following information: (1) when the business granted the reasonable accommodation; (2) the basis for doing so; and (3) any supporting documentation the worker provided in support of the reasonable accommodation. 

The guidance notes that employers can complete a medical or religious-based checklist that the City released, which can be accessed here, to demonstrate that they handled a request appropriately.  The guidance is careful to note, however, that these checklists do not constitute legal advice; instead, they are meant to serve as a guide for processing requests.  Those checklists also identify potential accommodations employers can use when granting an exemption, including weekly PCR testing for COVID-19 and masking;  teleworking or remote working; leaves of absence; or other options.  But they also include checkboxes for the denial of an accommodation where it cannot be granted because of a direct threat or undue burden on the business. 

Businesses must also be mindful that they may also be subject to the New York City Human Rights Law, which may require them to provide accommodations for others reasons – including pregnancy, childbirth and related medical conditions, lactation, or status as a victim of domestic violence, stalking, or sex offenses – which were not explicitly included on the checklists.  Separate guidance released by the City Commission on Human Rights notes that employers should engage in a cooperative dialogue when presented with an exemption request for these additional reasons.

Importantly, the City Commission also explains that accommodations that could pose a direct threat, and which therefore, a possible exemption request denial, could occur where the unvaccinated employee engages in high-risk activities such as yelling or exercising while in close proximity to others, or works in close proximity to high-risk individuals, and that if there is no reasonable accommodation that would enable an unvaccinated employee to continue performing their job duties, the employer “can offer a leave of absence until the employee is able to provide proof of vaccination, or until it is otherwise safe for them to return to work.”  This leave of absence does not need to be paid unless the employer pays other workers who are unable to work for similar reasons. 

The City Commission also provides a list of principles that employers should keep in mind when requesting supporting documentation:

1. Employees seeking accommodations for a medical reason (i.e., disability, pregnancy, childbirth, or lactation) can be asked to provide a note from their medical provider.
2. Employees seeking accommodations because of sincerely held religious beliefs should not be required to submit supporting documentation unless the employer or business has an objective basis to question the sincerity of the employee’s beliefs.  The City Commission does note, however, that the law does not protect social, political, economic, or personal views.
3. Employees seeking accommodations because of their status as a victim of domestic violence, sex offenses, or stalking can be asked to provide a note from a related service provider, such as a social worker, attorney, doctor, clergy member, supporting their inability to show proof of vaccination.

Employers Have Flexibility to Respond to a Worker Refusing to Comply With the Vaccine Proof Requirement.

The guidance confirms that a failure by a worker to comply with the vaccine proof requirement only requires a business to exclude the worker from the workplace; it does not require the business to end the employment relationship or take any other adverse action.  At the same time, the guidance notes that businesses are left to decide how else to respond, which could include for example, disciplining such workers, or alternatively, permitting them to work remotely.

Employers Are Permitted to Utilize More Restrictive Vaccination Policies. 

The guidance confirms that nothing prohibits a business from implementing a vaccination policy that goes beyond the minimal requirements of the City’s vaccine order, provided such policies are otherwise lawful. 

Various City Agencies Will Enforce the Order. 

The guidance notes that enforcement will begin on December 27, 2021 and that businesses should expect inspectors from various City agencies to investigate compliance.  Businesses should also be prepared to make their required verification records available for inspection upon request.

The interpretative guidance notes that the City has a goal of helping to educate and to work with businesses to help them achieve compliance to avoid fines and penalties, but that businesses that refuse to comply are subject to a $1,000 fine with escalating penalties thereafter if they continue to violate the order. 

Takeaways

Businesses should take steps immediately to come into compliance, including by:

• Sending an appropriate communication to the workforce regarding the vaccine order and anticipated next steps.  For those employers that already have vaccine mandates in place, a communication is still recommended to explain how, if at all, the widely-publicized order impacts the existing policy. 
• Creating and implementing a (or updating an existing) policy, process and procedure to collect, verify, and retain worker vaccination records by the December 27, 2021 effective date, and to later produce those records to a City inspector. 
• Notifying workers that they may apply for a reasonable accommodation if applicable, and must do so in advance of December 27, 2021 if they wish to initiate the accommodation process.  Regarding accommodations, businesses should pay close attention to the accommodation process they will utilize.  While the accommodation request checklists provided by the City are helpful, they do contain certain flaws in their presentation and do not account for certain of the New York City Human Rights Law’s accommodation requirements.  Further, businesses are strongly recommended to consult with counsel if seeking to apply a direct threat or undue burden reason for an exemption denial. 
• Training supervisors, managers, and human resource professionals to understand the vaccine order’s requirements, including how to respond to worker requests for accommodations.
• Posting the required affirmation of compliance in a conspicuous location upon coming into compliance. 
• Interfacing with third-party employers of other workers, such as contractor employing entities, to discuss compliance expectations. 
• Continuing to take other steps to keep workers safe.  Employers should remember that, for now, the NY HERO Act remains in effect, which requires employers to take certain safety measure. 

Continuing to follow legal developments on this issue.  For example, employers should pay close attention to whether OSHA’s vaccine rule will go into effect, which may upend the applicability of the City’s vaccine order.  Employers should also monitor whether Mayor-Elect Adams will continue to enforce the order once he takes office.

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