On Dec. 13, 2021, the NYC Commissioner of Health and Mental Hygiene issued an Order requiring that, beginning Dec. 27, 2021, all employees who perform in-person work or who interact with the public must show proof of vaccination against COVID-19 prior to entering the workplace.
Employers, including cooperative and condominium buildings, are thus required to deny access to any of their workers who have not provided such proof, except if they have applied for a religious or medical exemption and such request is pending or has been granted.
While SEIU Local 32BJ and the Realty Advisory Board have yet to issue their own statements, the Order and its timelines supersede those in their Memorandum of Agreement dated Sept. 30, 2021, which was the subject of our Oct. 4, 2021, advisory.
Accordingly, commencing on Dec. 27, an unvaccinated employee must be barred from the building and, barring an agreement with the Union to the contrary, an unvaccinated employee may be fired or disciplined, subject to their having requested and received an accommodation. Accommodation requests must be made by an employee by Dec. 27, 2021. See the City's Application Form for medical or religious exemption, which provides a guide to evaluating the request.
In addition to those persons granted exemptions for medical or religious reasons, the Order does not apply to workers who work from home or whose employment does not involve interacting with others; or individuals who enter the workplace for a quick and limited purpose (such as delivery persons or dog-walkers merely picking up or dropping off a pet).
Employers are required to collect, verify and maintain a record of their employees' proof of vaccination and to maintain records of reasonable accommodation(s) granted due to sincerely held religious beliefs or disability.
There are specific requirements concerning recordkeeping which must be reviewed. All records created or maintained by the employer must be treated as confidential and stored in a secure location separate from an employee's regular personnel file, and available to only those employees or employer officials who have a legitimate need to access the information.
Workers, such as employees of contractors (whether retained by the building or an apartment owner), must provide vaccination proof to their employers, and cooperatives and condominiums may, but are not obligated to, request that a contractor confirm that it, and its workers, are in compliance with the Order. The building must then keep a log of the requests made, and the confirmations it receives. This applies not only to contractors such as construction personnel but also to residents' household staff such as nannies and housekeepers.
On or before Dec. 27, each employer must post, in a public place, an affirmation of Compliance. The City's Department of Health website contains links to several forms, including the Affirmation of Compliance.
Upon request by a New York City agency, employers must make available for inspection any records required by the Order.
Noncompliance with the Order can result in fines up to $1,000 per violation with escalating penalties if violations persist. The City has set up a telephone line for citizen reports of noncompliance with this Order.
This Order does not supersede the mask mandate put in place by the state, and all persons in the building, even if vaccinated, must wear masks in common areas.
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.
