Q: Has New York City provided any additional details on the employer vaccination mandate?
A: As we previously discussed, effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. The policy must provide that all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27.
Employers must complete an Affirmation of Compliance with Workplace Vaccination Requirements (available here) and post the completed affirmation in a public place.
The city recently released FAQs on the requirement, which address some of the outstanding questions. The FAQs confirm that there is no alternative testing option to vaccination. The only exceptions to the vaccination requirement for employees who work in-person are: (1) a religious accommodation; (2) a medical accommodation; or (3) an employee who only enters the workplace for a quick and limited purpose. Examples of a “quick and limited purpose” include using the restroom, making a delivery, and clocking in to receive an assignment before leaving to begin a solitary assignment.
The FAQs also provide details on the accommodation process. Employees who have a sincerely held religious belief or medical condition that prevents them from being vaccinated must apply for a reasonable accommodation by December 27. Employers should handle accommodation requests promptly, and may permit employees to continue coming into the workplace while their accommodation request is pending. The city has provided a checklist with factors that employers should consider when considering an accommodation request, along with a medical accommodation form (with specific details for when a medical exemption can be granted and potential accommodation options), and a religious accommodation form (with specific details on when a religious exemption can be granted and potential accommodation options). These resources are available here.
Employers must keep records of approved reasonable accommodations, including the date of such grant, the basis for the grant, and any supporting documentation the employee provided. Maintaining the city’s checklists on file will be considered evidence that the employer handled the reasonable accommodation request appropriately.
City inspectors will begin enforcing the mandate on December 27, and businesses who refuse to comply are subject to a $1,000 fine, with escalating penalties thereafter if violations continue. As noted in our earlier post, Mayor de Blasio’s term expires on December 31, and it is unclear to what extent the incoming administration will continue to enforce the mandate.
Other key points addressed by the FAQs include:
- The mandate applies to all part-time and full-time employees, interns, volunteers, and contract workers. (For contract workers, employers can request a confirmation that the contractor is vaccinated from the contractor’s employer.) The mandate also applies to individuals who are self-employed, and sole proprietors to the extent that they work in a workplace, interact with other workers in-person, or interact with the public in-person during the course of their work.
- Proof of acceptable vaccination includes: a photo or hard copy of the employee’s CDC vaccination card; the NYC COVID Safe App; the New York State Excelsior Pass; CLEAR’s Digital Vaccine Card/Health Pass; official vaccination record, or a photo or hard copy of an official vaccination record of a vaccine administered outside of the U.S. for AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.
- The key geographic element is the location of the workplace – if the workplace is in New York City, the mandate applies, regardless of the employee’s place of residence.
Employers should work with counsel to ensure they are in compliance by December 27.