As discussed previously (here and here), effective December 27, 2021, all New York City workers who âperform work in person or interact with the public in the course of their businessâ must provide their employers with proof that they have received at minus one dose of a COVID -19 vaccine. Workers will then have 45 days (until February 10, 2022) to show proof of their second dose (for two-dose vaccines, a J&J dose being a full vaccination). After December 27, employers will no longer be able to allow unvaccinated workers to go to their workplace.
As promised, New York City today released Guidance (an overview page with links that can be found here) detailing the requirements related to this COVID-19 vaccination mandate for private workers. The documents contained in these links that are the richest in relevant information are the order of the Commissioner for Health and Mental Hygiene (here) and FAQ for covered entities (here). Below is a summary of the most critical information confirmed in the Guide.
Who / what is covered?
First, there must be a covered “worker”, that is, “a person who works in person in New York at a workplace”, Ordinance p. 5, with “workplace” defined as “any place where work is performed [in New York City] in the presence of another worker or a member of the public. FAQ p. 3. Accordingly, “[i]persons who are self-employed or sole proprietors “are covered if, and only if, in New York,” they work at a workplace, or interact with other workers in person, or interact with the public in person during the course of their work. FAQ p. 3 âA worker does not include: (i) a person who works from his own home and whose job does not involve interacting in person with co-workers or members of the public; [or] (ii) a person who enters the workplace for a quick and limited purposeâ¦. Â»Order p. 5. The FAQ states that unvaccinated workers may enter the workplace “for a quick and limited purpose”. The examples provided by the City for entering the workplace of unvaccinated workers are “using the washroom, delivering or checking in and receiving an assignment before leaving to begin a solitary assignment.” FAQ p. 2.
If there is a “worker” covered by the mandate, the next question is who is responsible for the execution and documentation of the mandate. Any non-government employer of “more than one worker in New York is subject to the vaccination mandate”, as is “any non-government entity that maintains or operates a workplace in New York.” FAQ p. 3. The five examples of covered entities provided in the FAQs are a clothing store, a grocery store, a taxi or rideshare owner-operator such as a ride-sharing driver, a speech-language pathologist who visits customers at home, and a writer who rents an office in a co-working space. FAQ p. 3.
Where an entity and a worker reside or are based, not matter. What matters is whether the work is being performed in the presence of another worker or a member of the public in New York City. FAQ p. 5.
Verification of immunization status
Under the NYC vaccine mandate and guidelines, employers must verify and keep track of each employee’s proof of vaccination by December 27. The order (at p. 3) offers three options on how businesses can meet this requirement:
- An employee’s file can be a copy of their proof of vaccination or a reasonable accommodation file with supporting documents.
- Companies can create their own paper or electronic file that includes the following information for each employee: (a) employee’s name, (b) if the employee is fully immunized, (c) for employees who have submitted a proof of the first dose of two -dose of vaccine, the date by which they can provide proof of a second dose (no later than 45 days after submitting proof of the first dose), and (d) a record of ‘reasonable accommodation with supporting documents, if applicable.
- Companies can check each employee’s proof of vaccination daily before entering the workplace and must keep a record of each check.
Although the Decree (at p. 5) reserves the right of the Commissioner to specify â[a]any other methodâ¦ to prove proof of vaccination â, the acceptance of workers’ self-vaccination certificates is not currently specified in the guide.
An entity that requests a contractor to visit their workplace in New York can either verify the contractor’s proof of vaccination on each visit or ask the contractor’s employer to confirm that the contractor is vaccinated, while needing to keep a log of these requests and confirmations. received if the latter option is chosen. FAQ p.5.
Affirmation of conformity
Also by December 27, all employers will be required to complete this affirmation certificate and display it in a “public place” in the workspace to show that they are in compliance. Employers should also be prepared to make these records available for inspection. The guidelines confirm that any company that has posted a notice under the Key to NYC program is not required to post that additional notice.
Thus, and contrary to previous reports, employers not must submit proof of vaccination or compliance to the City’s Department of Health and Mental Health in order to comply with this mandate.
Workers who say their religion or a health problem prevents them from getting the vaccine must request a reasonable adjustment to the vaccination mandate by December 27, 2021, or face exclusion from face-to-face work. FAQ p. 6. If the request for a reasonable accommodation is made before December 27, the worker is authorized to continue working at the workplace while his request for an accommodation is being examined. Although the ordinance and FAQ are silent on the conditions that should be imposed on the worker during this review period, because the Guidelines for Public Accommodation on the Fair Implementation of COVID-19 Vaccine Requirements ( “Accommodation guidelines” here) provides the example of “show[ing] evidence of a recent negative COVID-19 test and wear[ing] face covering at the scene âas an example of reasonable accommodation, doing so during the review period should suffice. Accommodation Guideline # 2. Indeed, the NYC COVID-19 hotline has confirmed to the authors of this alert that, if a worker appropriately requests vaccine accommodation, that worker can enter the workplace during the review period. as long as he wears a mask.
Companies will need to keep a record of any reasonable accommodation granted, which should include a ‘record of when you granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation. “. FAQ p. 2. The City âmay review a Covered Entity’s reasonable accommodation process and records to ensure that the entity deals with requests promptly and appropriatelyâ. FAQ p. 6. Notably, the Accommodation Guide includes âchecklistsâ for accommodation for medical and religious reasons, respectively, which indicate somewhat narrow determinations of when such accommodation should be granted; and the FAQs (at p. 6) state that, â[i]If an employer chooses to follow this checklist and keeps it on file, it will demonstrate that the employer has handled the reasonable accommodation request appropriately. “
Sanctions and enforcement
Employers should keep records of the immunization status of their employees, as described above. These records must be made available for inspection by “[i]inspectors from various city agencies â, who will begin to apply the vaccination mandate on December 27, 2021. FAQ p. 6.
Penalties for non-compliance start at $ 1,000 and may increase for repeat offenders. FAQ p. 7. The FAQ clearly states that companies will need to take several steps to collect and record immunization, as well as publish the attestation information above to be in compliance.
In the event that an employer or individual suspects that someone is trying to provide false proof of vaccination, he or she may – but is not required to – do any of the following: (1) call 311 or file a complaint online, (2) call 833-VAX-SCAM (833-829-7226), or (3) email [email protected] Tips, report a fake registration.
Next steps for employers
To comply with this mandate, employers should start preparing an immunization policy if they do not already have one in place. They should also prepare a method to verify and record their employees’ immunization status and requests for reasonable accommodations by December 27, 2021. In addition, employers should ensure that they complete and post the required statement. by December 27.
Seyfarth lawyers are available to provide advice and help businesses comply with this mandate.