United States: The Key To NYC Pass: Vax Up Or Miss Out

Earlier this month, New York City Mayor Bill de Blasio announced that the city would be implementing the "Key to NYC Pass" requiring that patrons and employees of certain indoor entertainment, recreation, dining and fitness establishments prove that they have received at least one dose of the COVID-19 vaccine to enter the establishment. There is no "testing out" option under the Key to NYC Pass. On August 16, 2021, the mayor issued Executive Order No. 225 instituting the mandate and its requirements, as well as a set of frequently asked questions (FAQs). The mayor announced that the new mandate takes effect on August 17, 2021¹ and that establishments will have until September 13, 2021 to get into compliance before being penalized for violations. In addition, the New York City Department of Health and Mental Hygiene (DOHMH) added a new page to its website entitled "Key to NYC," which provides additional information and a link to a poster businesses can use to comply with the notice-posting requirement.

Which Establishments are Covered?

The mandate applies to covered entities, which is defined as "any entity that operates one or more covered premises." It does not include pre-kindergarten through grade 12 public and non-public schools and programs, childcare programs, senior centers, or community centers.²

Covered premises means any location that is used for the following purposes, excluding locations in a residential or office building where use is limited to residents, owners, or tenants of that building:³

• Indoor Entertainment and Recreational Settings, including indoor portions of the following locations: movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums and galleries, aquariums, zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers;

• Indoor Food Services, including indoor portions of food service establishments offering food and drink, including all indoor dining areas of food service establishments that receive letter grades as described in section 81.51 of the Health Code; businesses operating indoor seating areas of food courts; catering food service establishments that provide food indoors on its premises; and any indoor portions of food service establishments that are regulated by the New York State Department of Agriculture and Markets offering food for on-premises indoor consumption.
  
  • Notably, the requirements do not apply to any food service establishment offering food and/or drink exclusively for off-premises or outdoor consumption.
  • The FAQs further explain that if an establishment offers only take-out, delivery or outdoor dining, any indoor tables, chairs, or other furnishings normally used by patrons for indoor dining must be removed or blocked off (e.g., with signs or tape) so they are unavailable for use. This would permit the move to take-out, outdoor dining, or pick-up-only options for establishments that previously offered indoor dining.

• Indoor Gyms and Fitness Settings, including indoor portions of standalone and hotel gyms and fitness centers, gyms and fitness centers in higher-education institutions, yoga/Pilates/barre/dance studios, boxing/kickboxing gyms, fitness boot camps, indoor pools, CrossFit or other plyometric boxes, and other facilities used for conducting group fitness classes.

To Whom Does the Mandate Apply?

The vaccination mandate applies to all patrons, full- or part-time employees, interns, volunteers or contractors of a covered entity. Contractors and contingent workers also are required to be vaccinated, provided they are residents of New York City. However, the following persons are exempt from the order, and therefore can enter the premises without showing proof of vaccination, provided they wear a face covering at all times when they are unable to maintain six feet of distance from others:⁴

• Individuals entering for a quick and limited purpose (for example, using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs);
• A non-New York City resident performing artist not regularly employed by the covered entity while they are in the covered premises for purposes of performing;
• A non-New York City resident professional athlete/sports team who enters the covered premises as part of their regular employment for purposes of competing; and
• A non-New York City resident accompanying a performing artist or professional athlete/sports team into the covered premises as part of their regular employment so long as the performing artist or professional athlete/sports team are performing or competing in the covered premises.

The FAQs further clarify that establishments do not have to check proof of vaccination for suppliers or vendors, such as individuals making deliveries, pickups, or making necessary repairs, as long as these suppliers and vendors are required to wear a face covering when indoors and not able to maintain six feet of social distance.

Children 12 and under (who are not eligible for the vaccine) can enter the covered establishment with a vaccinated adult provided they wear a face covering at all times unless they are eating or drinking, whenever they are unable to maintain six feet of social distancing from others.

What is Required of the Covered Entity?

A covered entity cannot permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter the covered premises without displaying proof of vaccination and identification bearing the same identifying information as the proof of vaccination.⁵

Check Proof of Vaccination

Proof of vaccination means proof of receipt of at least one dose of a COVID-19 vaccine authorized for emergency use or licensed for use by the U.S. Food and Drug Administration or authorized for emergency use by the World Health Organization. Such proof includes:

• A CDC COVID-19 Vaccination Record Card or an official immunization record from the jurisdiction, state, or country where the vaccine was administered or a digital or physical photo of such a card or record, reflecting the person's name, vaccine brand, and date administered;
• A New York City COVID Safe Pass (application available to download on Apple and Android smartphone devices);
• A NYC Vaccination Record; or
• A New York State Excelsior Pass.

Or, if the patron or employee received the vaccine outside the United States, the individual must have an official immunization record that includes: first name and last name, date of birth, vaccine product name (only vaccines authorized by the WHO are acceptable),⁶ date(s) administered, and site where the vaccine was administered or name of the person who administered it.

Covered entities do not have to request proof that the vaccination card is real.

Check Identification

The DOHMH website indicates that covered entities only need to check the identification of anyone appearing to be 18 years of age or older. The identification of those under 18 can also be checked but is not required. The identification must be checked at the same time proof of vaccination for entrance to an indoor space is checked.

The identification shown must allow the covered entity to confirm that the person requesting entrance is the same person reflected on the proof of vaccination. The identification must contain either the name of the individual and a photo of the individual, or the name of the individual and the individual's date of birth. The covered entity must then compare the name and photo or date of birth with that displayed on the proof of vaccination.

Acceptable forms of identification include: driver's license, non-driver government ID card, IDNYC card, passport, school or work ID card. Individuals may also show copies of their identification document, including a picture on their phone or by using an app like NYC COVID Safe that allows them to display a copy of the document.

Develop a Written Protocol

Notably, each covered entity must develop and keep a written record describing its protocol for implementing and enforcing the requirements of the executive order, including how the covered entity will require proof of vaccination of employees and patrons, and such protocol must be available for inspection upon the request of a city official.⁷ This is an important clarification of the mayor's initial announcement, where it was suggested that covered entities may have to maintain proof of vaccination for all of their patrons. It now seems that proof that a covered entity checked every patron's vaccination status and identification is not required; only a written protocol for checking for proof of implementation and enforcement of the executive order is required.

Post a Sign

Covered entities must post a sign that is viewable by prospective patrons prior to entering the establishment, which alerts patrons to the vaccination requirement in the executive order and informs them that employees and patrons are required to be vaccinated. DOHMH must determine the text of such sign. A covered entity may use the sign available online or use its own sign provided it meets certain requirements.

Fines and Penalties for Non-Compliance

Beginning August 17, New York City will be canvassing small businesses to provide information about the new requirements, as well as undertaking an advertising campaign. Inspectors from various New York City agencies will begin inspections and enforcement on September 13, 2021. Importantly, each instance of a covered entity's failing to check an individual's vaccination status will constitute a separate violation of Executive Order No. 225.⁸ The executive order specifically states that "Any person or entity" who is determined to have violated this order is subject to a fine, penalty and forfeiture of not less than $1,000.⁹ Thus, this language leaves open the possibility of employees of covered entities personally being subject to fines and penalties. If the person or entity is determined to have committed a subsequent violation of the executive order within 12 months of the initial violation for which a penalty was assessed, the fine, penalty or forfeiture increases to no less than $2,000. For every violation thereafter, such fine, penalty and forfeiture will increase to no less than $5,000 if the person or entity committed the violation within 12 months of the violation for which the second penalty was assessed.

Because maintaining a record of proof of vaccination status is not required, it appears that violations will be issued summarily during on-site inspections of covered entities.

Do Accommodations Have to be Made?

Section 7 of Executive Order No. 225 directs the New York City's Commission on Human Rights to develop guidance to assist covered entities in complying with the order "in an equitable manner consistent with applicable provisions of the New York City Human Rights Law." Presumably, this means that guidance is forthcoming regarding how to accommodate patrons or employees who cannot be vaccinated due to medical contraindications or sincerely held religious beliefs but seek access to the covered entity's establishment.

Moreover, the FAQs provide that covered entities should consider appropriate reasonable accommodations, "mindful of the purposes behind this policy and public health."

How to Handle Disputes with Customers?

Many covered entities are unsure what to do when customers refuse to cooperate. To address this issue, the Office of Administrative Trials and Hearings is expected to post a webinar by August 20, 2021.

Covered entities can also report someone suspected of possessing a fake vaccination card to 311 or to the NYS attorney general by filing a complaint via: https://ag.ny.gov/complaintforms, calling 833-VAX-SCAM (833- 829-7226), or emailing the state Department of Health at STOPVAXFRAUD@health.ny.gov. The FBI has warned that making or buying counterfeit CDC cards could result in fines and up to five years in prison for unauthorized use of the CDC's official seal.

Additional Guidance

The city will be providing additional guidance to business owners through webinars available at http://www.nycsmallbizcourses.eventbrite.com.

Next Steps for Covered Entities

Each covered entity must develop a written protocol for implementing and enforcing the requirements of the executive order, including how the covered entity will require proof of vaccination of employees and patrons, and how it will match it against identifications and ultimately allow or deny access to the establishment. It is crucial that covered entities adopt this protocol by September 13, 2021, and that they review the requirements of their protocol with those staff members who will be enforcing the vaccination mandate in order to avoid fines, penalties and/or forfeiture for noncompliance with the executive order.

In addition, each covered entity must post a sign such as the one available here, or their own sign that meets certain requirements.

We will continue to monitor developments in this area and provide updates as additional information becomes available.