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On December 6, 2021, New York City Mayor Bill de Blasio announced a first-in-the-nation vaccination order for private-sector workers in New York City, set to take effect on December 27, 2021. The New York City commissioner of Health and Mental Hygiene issued an order, dated December 13, 2021, requiring COVID-19 vaccination in the workplace, and, on December 15, 2021, the city promulgated guidance regarding how employers should implement the order.

The Order’s Requirements

The order applies to any private employer that operates in New York City or has more than one employee in New York City. The order defines “workplace” as “any location, including a vehicle, where work is performed in the presence of another worker, or a member of the public.” Self-employed individuals are not covered by the order unless, during the course of their work, they interact with other individuals in person. Additionally, employers that are subject to other vaccination orders already enforced within the bounds of New York City, such as Department of Health or Department of Education orders, are not covered by the city’s order.

The order requires all covered employers in New York City to ensure that employees provide proof of one dose of the COVID-19 vaccination by December 27, 2021. The order requires employees to provide proof of the second dose no later than 45 days after providing proof of the first dose.

The order requires employers to exclude from the workplace employees who do not provide proof of full vaccination in accordance with the order’s requirement. The order allows unvaccinated employees to enter the workplace only for limited reasons, such as to use the bathroom or receive an assignment.

Proof of Vaccination

The order requires employers to obtain proof of vaccination for employees by December 27, 2021. Employers may satisfy this requirement in a variety of ways, including making a copy of an employee’s Centers for Disease Control and Prevention (CDC) vaccination card, New York City COVID-19 Vaccination Record Card or other official immunization record (or by taking a picture of the NYC COVID Safe app and the New York State Excelsior Pass), or by creating the employer’s own written or electronically-stored record. If an employer chooses to create its own proof of vaccination record, it must include (1) the employee’s name; (2) vaccination status, i.e., partially or fully vaccinated; and (3) if an employee is being vaccinated via a two-dose vaccination series and the date on which the employee will provide proof of the second dose (which cannot be later than 45 days after the employee provided proof of the first dose).

For any independent contractor, employers should request proof of vaccination from the contractor’s employer, and keep a record of the request and response confirming vaccinated status.

The order also requires employers to keep a record of employee requests for accommodation from the order’s requirements if the reason is medical or related to a sincerely-held religious belief. Such documentation should include a timeline of when any such accommodation was granted and the reasons for approval, along with the documentation submitted by the employee in support of the request. The order requires employees to make these requests for such accommodations to their employers by December 27, 2021, though “[e]mployers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending.”

The order requires employers to store employee vaccination records and documents relating to requests for reasonable accommodations separately to ensure that confidentiality is maintained and that only those with a “need to know” are able to access such information.

Notice and Penalties

The order requires all covered employers to post, the Department of Health and Mental Hygiene (DOHMH) notice certifying that they are in compliance with the requirements of the order by December 27, 2021. The notice can be found on the city’s website. Entities, such as indoor dining, fitness, and entertainment establishments that are already required to post an attestation affirming compliance with the Key to NYC vaccination requirements are not required to post the DOHMH notice.

Employers will be subject to penalties of $1,000, including increasing fines for continuous violations for failing to comply with the order.

Key Takeaways

Employers in New York City may wish to review the above requirements to ensure that their practices comply with the obligations articulated in the order. Employers may also want to stay updated as the Key to NYC and the private-sector vaccine order continue to evolve.

Ogletree Deakins will continue to monitor and report on developments with respect to the Key to NYC order and pending injunction and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

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