New York City has sprung into action in response to the COVID-19 Omicron variant. The City recently announced a vaccine mandate for private employers and has now issued related guidance (“NYC Vaccine Mandate” or the “Mandate”).
The key things employers should know about this latest development and immediate actions to consider for compliance are summarized below.
Private Sector Employers are Broadly Covered.
With limited exceptions, the NYC Vaccine Mandate generally covers all private sector employers, regardless of size or industry, who maintain a workplace in NYC where work is performed in the presence of another worker, or a member of the public. This means companies who have only remote workers in the City are not covered, provided that the workers only work in their residences and do not come into contact with the public in the City while performing their job. On the other hand, even sole proprietors in the City would have to comply with the mandate if, for example, they work in a shared workspace or come in contact with the public.
Key Requirements and Compliance Deadlines.
- Proof of Vaccination by December 27: NYC workers who work at a covered workplace must provide proof of COVID-19 vaccination (at least proof of one dose of a two-dose series by this date) to the employer, unless an exception due to a religious or medical accommodation applies. Again, proof is not needed for employees that only work remotely or for workers who only ever enter the workplace for a quick and limited purpose. Workers who need to get their second dose must submit the second proof within 45 days after the proof of first dose was submitted and it is the employer’s responsibility to ensure the employee provides proof of receiving their second dose.
- Request for Accommodation by December 27: A worker who wishes to request an accommodation from the proof-of-vaccination requirement must do so by this date to begin the reasonable accommodation process.
- Fill out and Post Affirmation by December 27: Covered employers must fill out and post in a conspicuous location at their business a City-issued 1-page attestation sign (here) to affirm their compliance with the Mandate. Businesses (e.g., restaurants, fitness centers etc.) who have an existing notice per the “Key to NYC” requirements do not need to post this attestation sign.
- Recordkeeping Required. Employers must keep records of each employee’s proof of vaccination. Any information collected must be stored in a secure manner and accessed only by those with legitimate need. Records related to workers’ accommodation requests must also be kept, including, if you approved a reasonable accommodation based on a worker’s religion or medical condition, you will need to have a record of when you granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation.
Immediate Compliance Steps to Consider
Given the Mandate’s various December 27 compliance deadlines, covered NYC employers should consider taking the following immediate steps:
- Communicate with your workforce about the upcoming requirements and deadlines.
- Survey your workforce’s vaccination status and collect the relevant information/proof-of-vaccination (be mindful of confidentiality and other privacy-related requirements when doing so).
- Develop a policy and put protocols in place to address accommodation requests.
- Strategize reasonable accommodation options.
- Consider how to approach workers who are not able to comply with the vaccine mandate (but are not entitled to an accommodation), and assess your operational needs.
- Continue monitoring the relevant development for updates and potential court stays.
For more information or any questions about the topics above, or if you are unsure about whether your vaccine policy complies with the Mandate or any other applicable COVID-19 related workplace requirements, please contact the authors, Kevin Doherty and Keli Liu, or your personal Greenwald Doherty attorney contact.
COVID-19 related laws/requirements are changing rapidly in the current pandemic. Therefore, the legal issues/updates discussed here are subject to change. Please consult with your counsel concerning any specific legal advice you may need.