Alert
12.21.2021

On December 13, 2021, the Commissioner of the Department of Health and Mental Hygiene issued an order requiring that all private sector employees be fully vaccinated against COVID-19.  A copy of the order can be found here.  In addition, on December 15, 2021, the Commissioner also published guidance to assist employers in understanding their responsibilities under the order, which can be found here.  Here are some of the key takeaways:

  • Starting on December 27, 2021, all workers must provide or have provide proof of vaccination against COVID-19 to their employers, and covered entities must exclude from the workplace any worker who has not provided the required proof, unless an exception due to religious or medical accommodation applies, or a worker only enters the workplace for a quick and limited purpose. Examples of a quick and limited purpose include using the bathroom, making a delivery, and clocking in and receiving an assignment before leaving to begin a solitary assignment. 
  • “Covered entities” includes any non-governmental entity with more than one worker in New York City or that maintains a workplace in New York City. The definition also includes self-employed individuals or sole practitioners who work at a workplace or interact with workers or the public in the course of their business.  The “workplace” is any location, including a vehicle, where work is performed in the presence of another worker or member of the public.  “Workers” are full or part time staff members, employees, interns, volunteers or contractors of a covered entity, self-employed individual or sole practitioner who works in New York City at a workplace.  
  • Covered entities must maintain certain records. They must maintain a copy of each workers’ proof of vaccination or reasonable religious or medical accommodation (if applicable).  The Commission has issued guidelines and a checklist employers can use to document accommodation requests; however, they have not published accommodation forms.   The record must include the workers’ name and whether they are fully vaccinated (i.e. 2 weeks have passed after the individual received a single dose of vaccine that only requires one dose, or the second dose of a two dose vaccine series approved or authorized by the FDA or WHO).  For workers who submit proof of the first dose of a two dose series, proof of the second dose must be provided no later than 45 days after the first dose was submitted. If a worker does not submit proof because of a reasonable accommodation, the record must reflect that such accommodation was provided, and there must be a separate record describing the basis for the accommodation and any supporting documentation that was provided by the worker.  These records are confidential. 
  • Covered entities must check proof of vaccination before letting a worker enter the workplace and maintain a record of the verification.
  • Covered entities must affirm, no later than December 27, 2021, that they have complied with the order’s requirements and post the affirmation in a conspicuous location. The required affirmation form can be found here.
  • Self-employed persons and sole proprietors are subject to the order so long as they work at a workplace, interact with other workers, or interact with the public in the course of their work. If they do not have a fixed workplace or if the workplace is a vehicle, then they simply must keep their own proof of vaccination with them at all times in lieu of posting the attestation sign. 
  • For employers with multiple locations in NYC, each NYC location is subject to the requirements of the order. Vaccination records and accommodation records, however, can be stored in one central location, but each location should have contact information of the representative who is storing the records to give to City Inspectors upon request. 
  • Interestingly, private employers cannot rely upon the Commission’s Order to discharge employees for non-compliance. Instead, the Commission unfairly puts the responsibility on private employers completely, suggesting that employees who refuse to comply with either vaccination or accommodation requirement could simply be permitted to work remotely.  Specifically, the Commission’s FAQ provides, “As long as you keep the worker out of the workplace, it is your decision whether to discipline or fire such worker, or if the worker can contribute to your business while working remotely.”    

The order does not apply to entities or individuals who are already subject to another order of the Commissioner of the Department, Board of Health, the Mayor, or a State or Federal entity that requires them to maintain or provide full proof of vaccination, or to individuals who have been granted a reasonable accommodation.   Entities who are subject to federal requirements that are not currently in effect because of a court order must comply with the NYC order. 

The Bottom Line.  We do not know whether NYC’s new mayor will enforce this Order or pull back after January 1, 2022.  Accordingly, employers with NYC offices need to act fast to disseminate COVID-19 vaccination mandates to be in compliance with the Commissioner’s Order.  At a minimum, NYC employers must track and keep employees’ vaccination status.

NYC employers must quickly decide how to handle their unvaccinated workforce.  If in-person attendance is essential to the worker’s position, then the worker must either receive their first vaccine dose by December 27, submit a request for accommodation or resign employment.  If the exemption is approved, reasonable accommodation could be weekly testing and personal protective equipment. 

The real challenge will be for unvaccinated NYC workers who want to work remotely indefinitely.  We know that remote work assignments can be an accommodation (where the worker qualifies for a medical or religious exemption), but under the Americans with Disabilities Act, this only if the employer agrees.  The Commissioner’s FAQs seem to be in conflict with the ADA, making an employer’s job even harder, given the Commissioner’s position that perhaps employers should just let non-compliant employers work remotely.  The battle will then become over whether in-person attendance is truly essentially since most workers have been working remotely for over 18 months.

We are following this new requirement to see how the new Mayor will handle in January 2022.

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