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NYC Coronavirus Vaccination Mandate for Employers

Week after week, this publication has produced informative articles on workplace COVID-19 vaccination mandates – see here, here and here – and for good reason. Employers (and employees) grapple with a divisive national landscape of workplace vaccination mandates, including laws that require employers to implement mandatory vaccination policies, laws that prohibit employers from do it and the vast in between where employees can choose to do it.

News reached a crescendo last week when the U.S. Supreme Court issued rulings (i) blocking the Temporary Emergency Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA), which would have required employers of 100 or more employees to ensure their workforce is fully immunized or requires regular testing and masking, and (ii) maintaining the mandate of the Centers for Medicare & Medicaid Services (CMS), which requires COVID-19 vaccinations for workers in most health care facilities that receive reimbursement from Medicare or Medicaid.

As we continue to digest the fallout of these decisions, the nation’s largest city is pushing ahead with its own demands.

To that end, employers here in New York (NYC) have recently and suddenly found themselves subject to a local vaccination mandate. On December 6, 2021, lame duck Mayor Bill de Blasio (reflecting NYC’s “walk high or no walk at all” attitude) announced that NYC would be the first major US city to require private sector workers to be vaccinated against COVID-19. The mandate took effect on Dec. 27, 2021, just days before de Blasio handed over the mayoral reins to his successor, Eric Adams. Great confusion ensued. What would be required and expected of employers under the terms of reference that would come into effect on just over three weeks’ notice? Would Mayor Adams adopt and then enforce the mandate, that gift left to him upon leaving Mayor de Blasio, and if so, how would the federal OSHA ETS and CMS mandates affect this local rule?

In the meantime, as all of this waned over the holiday season, NYC was hit by a resurgence of COVID-19 disease due to the omicron variant, forcing many NYC employers to maintain or return to remote workforce contingencies, which tend to undermine the urgency and purpose of workplace vaccination mandates (i.e. there is less need to regulate where to work when everyone is working from home). As December 2021 turned to January 2022, it seemed like many weren’t paying attention to mandates, and those who were were struggling to know where to focus.

A month later, in mid-January 2022, the picture has become a little clearer. The omicron surge appears to have peaked and hopefully is declining; Mayor Adams has indicated he will keep NYC’s vaccination mandate in place for private sector employers; and last week the U.S. Supreme Court released its rulings on the OSHA ETS and CMS vaccine mandates. This last point is important because, under the recently released order, FAQs, and other guidelines, the NYC mandate would not apply to any company otherwise subject to these federal vaccine mandates.

As a result, employers in New York now have a better view of the situation. With the OSHA ETS mandate out of sight, NYC employers of any size (including those with 100 or more employees) who are not otherwise subject to the federal CMS vaccine mandate, should comply with the NYC mandate and monitor developments related.

Who is covered by the NYC Private Sector Vaccination Mandate?

Size doesn’t matter. NYC’s mandate applies to (i) any employer who has a workplace in New York or employs one or more employees in New York, and (ii) any self-employed person or sole proprietor who works at a workplace or interacts with workers or the public while working. “Workplace” is broadly defined as any location, including a vehicle, where work is performed in the presence of another person or member of the public.

The type of worker does not matter. The term applies to a person who works in person in New York at a place of employment and expressly includes employees, interns, volunteers and contractors of a covered entity or a full-time and part-time employer. . It specifically excludes remote workers, meaning people (i) working from home whose work does not involve face-to-face interaction with co-workers or the public, or (ii) entering the location work for a quick and limited purpose.

What is required?

As of December 27, 2021, and in the absence of an applicable adaptation exception (see below), employers must exclude from the workplace any worker who has not provided proof of vaccination in accordance with the mandate. Unlike OSHA ETS, there is no test and mask option for the unvaccinated.

Proof of vaccination. The Mandate requires any Covered Entity to confirm the vaccination status of each of its Covered Workers by one of the following means:

  • Keep a copy of each worker’s proof of vaccination;

  • Maintain a record of proof of vaccination for each worker that includes (i) the name of the worker; (ii) whether the worker is fully vaccinated (or, if not, proof of a first dose and the timing of any second dose); Where

  • Check proof of vaccination daily before allowing a worker to enter the workplace and keep a record of this check.

Proof of vaccination means one of the following documents establishing that the person is fully vaccinated or has received the first dose of a two-dose vaccine and follows up with confirmation of the second dose within 45 days of the first dose:

  • CDC COVID-19 Vaccination Card

  • New York City COVID Safe App showing vaccination record

  • New York State Excelsior Pass/Excelsior Plus Pass

  • CLEAR Health Pass

  • Any other official immunization records from the jurisdiction, city, state, or country where the vaccine was administered, or from a healthcare professional or other licensed vaccinator who administered the vaccine, who provides the name of the person, the brand of vaccine and the date of administration.

For self-employed workers such as contractors, a covered employer may require the worker’s employer to confirm proof of vaccination in lieu of meeting one of the above requirements, provided the covered employer maintains a record of the request and confirmation.

Confidentiality/Inspection. All records created or maintained by an employer under the retainer must be treated as confidential and must also be made available for inspection by a NYC agency upon request.

Notice/Display/Inspection. By December 27, 2021, all covered companies must complete and publicly post a certificate attesting to their compliance with the mandate.

Exceptions ?

The warrant has potentially applicable exceptions. According to the guidelines, when applying the mandate, employers must (i) consider requests for reasonable accommodations from employees who require them due to disability, pregnancy, childbirth, breastfeeding, religious beliefs or observances, or status as a victim of domestic violence, harassment, or sexual offenses, and (ii) engage in cooperative dialogue or good faith discussion regarding possible accommodations reasonable. If no such accommodation allows an unvaccinated employee to continue to perform their duties without posing a direct threat (to themselves or others) or creating undue hardship to the employer, then the employer may offer the worker on unpaid leave until such time as the worker provides proof of vaccination or the threat or coercion no longer applies.

Employers are asked to carefully follow the guidelines in handling any request for accommodation, including a vaccine exemption request.

Employers are prohibited from retaliating against any worker who requests accommodation related to the vaccine mandate.

And then ?

What Should NYC Employers Do Now? For those who haven’t started complying with NYC’s vaccination mandate (and aren’t subject to CMS or any other mandate), now is the time to do so:

  • Inform all employees of NYC mandate requirements and consequences for non-compliance

  • Confirm proof of vaccination for any worker reporting to the workplace or

  • Establish procedures for maintaining required records

  • Publicly display the required compliance certification

  • Review any request for accommodation in accordance with applicable guidelines

  • Address the status of unvaccinated workers, including those with or without housing

According to its FAQ, NYC’s primary focus will be “to educate and work with businesses to help them comply.” Companies that refuse to comply will be subject to fines of $1,000 and escalating penalties for persistent non-compliance.

Finally, with the recent Supreme Court decision limiting federal authority regarding broad vaccination mandates, employers across the country should be on alert as other localities may decide to take similar action on employee vaccination orders.