All New York City employers should take heed regarding the City's newly announced vaccine mandate applicable to all private sector employers in NYC. The City recently published guidance relating to this new requirement, which we summarize below. Although we expect legal challenges to be filed, employers should strongly consider becoming familiar with the requirements and developing an implementation plan (including employee communications) in the event that the mandate is not stayed by court order on a temporary basis.
In addition, New York State Governor Hochul has instituted a mask mandate covering the entire state that is not limited to the employer-employee context. We also summarize those requirements below and how they interact with the NYC vaccine mandate.
We will continue to monitor developments for legal challenges and/or additional guidance (including the status of the pending NYC COVID-19 Child Vaccination legislation).
New York City Vaccine Mandate
Effective Date: December 27, 2021
Core Requirement: All employees at private sector businesses who perform in-person work or interact with the public in the course of business must have had at least one dose of an FDA approved COVID-19 vaccine. This means employees who work remotely from home are not subject to this mandate at this time. Workers will have 45 days to show proof of the second dose of the Pfizer or Moderna vaccines.
- Businesses may not allow unvaccinated workers to enter the "workplace," which is defined as any location - including a vehicle - where an individual works in the presence of at least one other person.
- Businesses must verify and keep a record of each worker's proof of vaccination by 12/27/21.
- The City's Vaccine Key to NYC webpage includes guidance on acceptable forms of proof of vaccination (e.g. CDC vaccination card, NYC vaccination record, a NYC COVID Safe App, Clear Health Pass, Excelsior Pass).
- Records can be maintained in hard copy or electronic form and
must include the following information:
- employee name;
- whether employee is fully vaccinated;
- if not fully vaccinated (only one dose of Pfizer or Moderna vaccine), the date by which proof of the second dose must be provided; and
- a record of any reasonable accommodation provided with supporting documentation.
Remember – all employee medical records must be maintained in a confidential manner in a medical file that is separate from their personnel records.
Non-employee workers such as independent contractors must provide vaccination proof to the companies they are working for, and businesses can request that the company confirm proof of vaccination. Businesses must then keep a log of these requests and the confirmations they receive.
Note: Employers should consider requesting and receiving confirmation in writing via email to develop compliance documentation or - at a minimum - obtain the name and contact information of the individual that confirmed vaccination status. A follow-up email can confirm all contractors reporting to the company's workplace have provided their employer with the required proof of vaccination.
Required Certificate: By December 27, 2021, businesses must complete a required certificate affirming they are compliance with the NYC vaccine mandate and post the certificate in a public place (such as where other workplace compliance posters are posted).
- NYC has published the required certificate content, which can be accessed here.
- People who work alone - at home or otherwise - and do not have in-person contact with co-workers or others in the course of their business.
- People who enter the workplace for a limited purpose, such as to use the bathroom (it is not clear whether this exception applies to delivery personnel).
- Non-NYC resident performing artists, college or professional athletes, or anyone who accompanies them.
- People who have requested reasonable accommodations for medical or religious reasons. If an accommodation is granted, business must maintain documentation supporting the basis for the accommodation in accordance with this guidance issued by NYC.
Note: Paid leave may be available for employees to obtain the COVID-19 vaccination (and likely in NYC for their child to obtain the vaccination pending Mayor De Blasio's signature).
- New York State provides employees with up to four hours of paid leave per COVID-19 vaccination shot. Employers cannot substitute other available paid leave for this requirement (such as New York paid sick leave).
- The New York City Council also recently passed a bill that will provide NYC employees with up to four hours of paid leave if their child obtains the COVID-19 vaccination, or to care for a child with temporary side effects related to the vaccine. This bill has been submitted to Mayor De Blasio for signature and will be retroactive to November 2, 2021, if signed, and will remain in effect through December 31, 2022.
- Employers may not require an employee to use existing leave (e.g., NYC sick leave) in place of COVID-19 child vaccination leave.
Keys to the NYC Requirements
For NYC employers that conduct covered indoor public activities (e.g., indoor dining, fitness, theatres, entertainment, and meeting spaces):
- Starting December 27, 2021, people 12 years of age and older participating in indoor public activities will be required to show proof that they have received two vaccine doses (for Pfizer or Moderna)
- People 18 and older must provide identification along with their proof of vaccination
- Proof of COVID-19 vaccination (at least one dose) has been extended to children ages 5 to 11
- Starting 1/28/22 children ages 5-11 must provide proof of full vaccination
- A new poster must be displayed where it is clearly visible to people before they enter the business
- More information, including employer implementation plan requirements, is available here.
- Updated FAQ guidance, issued December 15, 2021, is available here.
New York State Mask Mandate
- Effective Monday December 13, 2021 through January 15, 2022.
- All individuals over the age of 2 who are medically able to tolerate wearing a mask/face covering are required to do so while in any NYS indoor public space, unless proof of vaccination is required as a condition of entry (which applies to all employees, patrons, and visitors).
- Indoor public place is defined as "any indoor space that is not a private residence."
- Offices must comply – even if they are not open to the public.
- Masks may be removed for eating or drinking or when alone in an enclosed room (because there is no social distance exception provided in the recently issued guidance, it appears masks will be required for those working in cubicles – even if no one else is present).
- Local health departments are responsible for enforcement, but note that more than one quarter of the state's counties have indicated they do not plan to enforce the mandate at this time. This is a fluid situation that likely will depend on whether there is an increase in reported positive cases.
- FAQ guidance issued by NYS on the mask mandate is available here. This includes some industry-specific guidance for food service, salons, personal care businesses, and TV or film production
- The NYS "Mask Mandate" poster is available here.
- The NYS "Proof of Vaccination to Enter" poster is available here.
Note: The NYS Mask Mandate is an all-or-nothing approach – employers may not permit some employees to go without a mask (e.g., fully vaccinated staff) while requiring others to wear a mask (e.g. unvaccinated or partially-vaccinated employees). This means that if an employee was granted a reasonable accommodation and is not vaccinated, all staff must wear a mask regardless of vaccination status (unless they are alone in an enclosed room).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.