As we reported here, New York City has imposed a vaccine mandate for private employers to help curtail the spread of COVID-19 and as we enter the new year. The mandate takes effect on December 27. The City, as promised, published guidance on December 15. The guidance includes links to the official NYC Health Commissioner’s Order, FAQs, Flyer for Business Owners, and an affirmation of compliance that must be posted in a public-facing location.

We have summarized the guidance with FAQs of our own:

What is the scope of the vaccine mandate? 

The mandate does not apply to covered entities or individuals who are already subject to another federal, state, or city order that requires them to maintain or provide proof of full vaccination, or to individuals who have been granted a reasonable accommodation. Covered entities or individuals who are subject to federal requirements that are not currently in effect because of a court order must still comply with the mandate.

Employees who have a sincerely held religious belief or a medical condition that prevents vaccination may apply for reasonable accommodation by December 27.

Employees who have not filed for reasonable accommodation must provide proof of full vaccination or proof of at least one dose in order to enter the workplace. Partially vaccinated employees will have 45 days to meet this requirement and to provide proof of full vaccination to their employers.

“Full vaccination” does not require booster shots at this time.

Are all private employers covered by the vaccine mandate?

The mandate is extremely broad: it applies to any non-governmental entity that maintains or operates a workplace in one of the five boroughs of New York City (Manhattan, Brooklyn, Bronx, Queens, and Staten Island) and employs more than one employee. Individuals who are self-employed or sole proprietors are not covered by the mandate unless they operate in a workplace, interact with other employees, or interact with the general public. The mandate defines “workplace” as any place where work is performed in the presence of another worker or member of the general public. Examples of workplaces covered under the mandate include clothing stores, grocery stores, taxicabs or rideshares, shared workspaces, and individuals visiting clients’ homes. The mandate also applies to workplaces anywhere in New York City, including the outdoors, but excluding workers’ homes.

Co-working spaces, such as WeWork, are also covered by the mandate. Co-working spaces are required to check each individual worker’s proof of vaccination before allowing entry into the workplace. A co-working space occupied by a small company will be obligated to provide confirmation that all of the workers entering the co-working space are vaccinated.

What does the vaccine mandate require of private employers?

The mandate requires employers to verify and maintain a record of their employees’ vaccination status before permitting entry into the workplace. Unvaccinated workers must be denied entry until they either (1) present proof of vaccination or (2) qualify for a reasonable accommodation, or demonstrate that another exception applies.

Employers have three options for employers to meet the recordkeeping requirement:

  • Maintain a copy of the worker’s proof of vaccination or a record of a reasonable accommodation with supporting documentation.
  • Create a paper or electronic record that includes the worker’s name, and vaccination status or record of reasonable accommodation.
  • Verify the worker’s proof of vaccination before the worker enters the workplace each day, and maintain a record of each verification.

Unvaccinated workers may enter the workplace for quick and limited purposes. Examples of quick and limited purposes include using the bathroom, making a delivery, or clocking in and immediately leaving the workplace for an assignment elsewhere.

There is also a mandatory “affirmation of compliance” sign that employers must complete and post in a conspicuous location within the workplace. The sign must be completed and posted by December 27 and will affirm that the business is complying with the mandate. If the business has multiple locations, the sign must be posted conspicuously at each location to comply with the then.

What constitutes proof of vaccination?

Employers should collect and securely store workers’ vaccination information. An employer may make a copy of the worker’s vaccination record. Alternatively, it may create a record that includes the worker’s name, vaccination status, and (for workers who produce documentation proving one dose of an approved two-dose vaccine) the date by which proof of the second dose will be provided, which must be no later than 45 days after the proof of the first dose was submitted.

Proof of acceptable vaccination includes the following:

  • A photo or hard copy of the worker’s CDC vaccination card
  • City COVID Safe App
  • State Excelsior Pass
  • CLEAR Digital Vaccine Card
  • CLEAR Health Pass
  • Official vaccination record
  • A photo or hard copy of an official record of a vaccine administered outside the United States

Non-employee workers, such as independent contractors, must provide proof of vaccination to their employers, who in turn will be obligated to confirm with the business that the contractor is vaccinated. Employers must keep a record of requests and confirmations for inspection by government agencies. Workers who refuse to provide proof of vaccination must be removed from the workplace and denied entry until vaccination proof is provided.

Employers are not required to terminate workers who choose to forgo the vaccine. Unvaccinated workers may be disciplined at the employer’s discretion, or allowed to work remotely.

What are the reasonable accommodation requirements?

Employers must consider requests from workers for reasonable accommodation for disabilities or religious beliefs. Workers who have requested reasonable accommodation before December 27 may be allowed entry into the workplace while their accommodation requests are pending. Employers should also be aware that government agencies may review a business’s reasonable accommodation process to ensure that the requests are being processed in a timely and appropriate manner.

In addition, employers are required to maintain the documents related to a worker’s request for accommodation. The worker’s request stating the basis for granting accommodation, and any supporting documentation provided, must be maintained by the employer and made available for inspection by government officials when necessary. Employers must also provide the worker with a written communication of the employer’s decision at the conclusion of the interactive process. An employer may deny any accommodation that imposes undue hardship on the business. The guidance includes a checklist that employers may use when evaluating workers’ requests for reasonable accommodation.

For a printer-friendly copy, click here.

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