During the pandemic, employers in New York City have faced numerous government mandates. As the beginning of the pandemic's third year approaches, the City continues to issue new mandates for employers. The most recent City and/or state government orders involve vaccine mandates for workplaces and public spaces, as well as mask mandates, paid leave for vaccine inoculations, and other important issues.
NEW NYC VACCINE MANDATES FOR PRIVATE SECTOR EMPLOYERS, SCHOOLS AND PUBLIC SPACES
On Monday, December 7, 2021, New York City Mayor Bill de Blasio announced a New York City Department of Health mandate1 that all New York City (NYC) employees working in person for private sector employers (nonprofit and for-profit) will need to receive at least one dose of the Covid-19 vaccine by December 27, 2021, just 4 days before the Mayor leaves office. This is the most expansive vaccine mandate in the United States, as it applies to all NYC private sector employers regardless of their size and does not offer employees an option for Covid testing (unlike OSHA's Emergency Temporary Standard for Covid-19 vaccinations2). The Mayor referred to the new mandate as a "central weapon" and a "preemptive strike" to address a recent rise in Covid-19 cases and the influx of the Omicron variant.
The City's Health Commissioner is expected to release written guidelines for employers by December 15, 2021 with details expected on how to respond to employees' requests for exemptions from the mandate for medical conditions or sincerely held religious beliefs. Under federal, state and city laws, employers must provide reasonable accommodations for disabilities or sincerely held religious beliefs that prevent an employee (or job applicant) from getting vaccinated, unless doing so poses an undue hardship on the organization or, in the case of a medical condition, where the disability or accommodation itself poses a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation. Additionally, employers must engage in a cooperative dialogue with employees (or job applicants) to determine a reasonable accommodation.
Hopefully, the NYC guidelines will also explain the penalties to employers, if any, for failing to comply with the mandate, and will address an employer's bargaining obligations with respect to a unionized workforce. Even if such covered employers do not have an obligation to bargain over the Health Commissioner's Order because of a lack of choice regarding implementation of the mandate, covered employers may nonetheless still be obligated to bargain with their employees' union over the effect of the Health Commissioner's Order as those affected employees may lose their employment if they remain unvaccinated. If these issues are not adequately addressed in the guidelines, the City may expect to see legal challenges. It also remains unclear whether incoming Mayor Eric Adams will roll back or rescind either de Blasio's or the Health Commissioner's directives.
The City's new requirements are a significant expansion of its previously issued vaccine mandates for City employees, healthcare workers, and public and nonpublic school staff. At the same time, the City also announced additional requirements under its Key to NYC Plan. Specifically, starting December 14, children ages 5 to 11 will be required to have proof of receiving at least one dose of a vaccine for indoor dining, fitness, entertainment, and meeting spaces. And by December 27, all people 12 and older participating in those activities will be required to show proof that they have been fully vaccinated. Like the mandate for employers, the Key to NYC Plan does not allow for a "testing out" exemption.
The Mayor's announcements also come on the heels of the New York City Commissioner of Health and Mental Hygiene's November 17, 2021 Order3, requiring Covid-19 vaccination for all staff in childcare and Early Intervention programs throughout New York City. The Commissioner also issued a December 2, 2021 Order4, requiring Covid-19 vaccination of all nonpublic school staff and exclusion of all unvaccinated staff from the premises if they have not shown proof to their employer by December 20, 2021 that they have either (1) been fully vaccinated against Covid-19 or (2) received the first dose of a two-dose Covid-19 vaccine, provided that the staff member also submits proof of receiving the second dose of that vaccine within 45 days after receiving the first dose.
Employers must exclude unvaccinated staff from the school premises, unless the staff member has requested and the employer has approved a reasonable accommodation (i.e., a religious or medical exemption). Nonetheless, unvaccinated staff members that are given a reasonable accommodation are still prohibited from working with children in person. The Commissioner's office has also clarified that no unvaccinated staff is permitted to be anywhere on premises, not just in a classroom with children. Schools must submit records showing compliance by December 28, and failure to adhere to the Health Commissioner's Order may result in fines to the schools.
The Covid-19 crisis has been deemed a public health emergency. In an effort to stave off legal challenges, the City's various vaccine mandates have been issued by the City's Health Commissioner who has the legal authority, pursuant to Section 3.01(d) of the Health Code, to issue orders and take actions that he deems necessary for the health and safety of New York City and its residents when urgent public health action is necessary to protect the public health against an existing threat and a public health emergency. Even so, lawsuits challenging the previous mandates are already pending, so it is quite possible that these new and expansive mandates will be challenged, as well. Notably, the U.S. Court of Appeals for the Second Circuit recently upheld New York State's vaccine mandate for healthcare workers, even though the mandate did not include a religious exemption. However, in another case, a three-judge panel of the Second Circuit ruled that the City's earlier vaccine mandate as applied to 15 public school teachers and school administrators who had sought a religious exemption was unconstitutional as to those plaintiffs and that they could re-apply for a religious exemption.
POSSIBLE NEW NYC LAW GIVING EMPLOYEES PAID VACCINATION LEAVE FOR BOOSTER SHOTS AND FOR VACCINATION OF THEIR CHILDREN
Both New York State and New York City laws require employers to give employees paid leave to receive Covid-19 vaccinations. Employees in New York are entitled to two periods of paid leave of up to four hours each, per injection, during working hours. Recently, the New York State Department of Labor issued additional guidance5 explaining that the paid vaccination leave requirement applies to booster shots as well6.
Although the state law applies only when employees are seeking leave to get vaccines for themselves, on November 23, 2021, the New York City Council passed an amendment to NYC's Earned Safe and Sick Time Act to require employers to provide employees with up to four hours' paid leave to accompany their child to receive a Covid-19 vaccine injection, or to care for such child who is experiencing temporary side effects from a Covid-19 vaccine injection. The parental/legal guardian paid leave is per vaccine injection, during work hours, for each of their children. The law prohibits retaliation against an employee for exercising their rights under this law.
This NYC law will take effect as soon as the Mayor signs it, and would apply retroactively to November 2, 2021. If the Mayor does not sign the bill into law or veto it within 30 days, it becomes law. If an employee used leave time or unpaid leave to get their child vaccinated on or after November 2, the employer must pay the employee for such leave taken from November 2 through the date of enactment of this law (by no later than the pay day for the next regular payroll period beginning after the NYC law takes effect). Note that the law expires and is deemed repealed on December 31, 2022.
NY STATE GOVERNOR ENACTS STATEWIDE MASK MANDATE
Employers are also affected by a new directive from New York State. In response to a winter surge in Covid-19 cases and hospitalizations and insufficient numbers of vaccinated New Yorkers in certain parts of the state (despite the fact that 80 percent of all New Yorkers are considered fully vaccinated), Governor Hochul implemented a mask mandate, to take effect on December 13, 2021.
The order requires masks to be worn at all indoor public places anywhere in New York State unless the business or venue has implemented a vaccine requirement. The mandate will continue until at least January 15, 2022, at which time the Governor will re-evaluate the situation and the need for continued masking.
It is unclear who is responsible for enforcement of the mask mandate and whether businesses will be fined for non-compliance or for not enforcing the rule with respect their patrons and customers. It is also unclear what this means for restaurants and bars where patrons are, of course, unmasked while consuming food and beverages.
WHAT EMPLOYERS SHOULD DO NOW
All employers with employees working in person in New York City should take immediate steps to notify their workforce of the City's new vaccine mandate, so that unvaccinated employees have time to get vaccinated before the December 27 deadline (or earlier deadline, if a school employee). Employers in New York City should be prepared to receive and address employee requests for accommodations, based on the City's forthcoming guidance. Employers also may want to update their policies on reasonable accommodations and how employees can request them, and forms for documenting the cooperative dialogue process, as well as policies on mandatory vaccinations and paid leave for time to get vaccinated (and to get their children vaccinated and recovered from vaccination). And, of course, it is always a good idea to do a refresher training for managers on handling requests for reasonable accommodations and Covid-19 safety protocols.
All employers in New York may want to consider educating and encouraging employees to get their vaccination booster shots if they are able to do so. Employers may also be well-advised to ensure the enforcement of indoor mask-wearing, in light of rising numbers of Covid-19 cases, hospitalizations, and the spread of the Omicron variant, at this time.
Footnotes
2. Occupational Safety and Health Administration, Covid-19 Vaccination and Testing Emergency Temporary Standard - https://www.osha.gov/coronavirus/ets2
6. Nothing in the law impairs a collective bargaining agreement's provision of pay for a greater number of hours.
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