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NYC Issues Guidance On Vaccine Mandate for Private Employers

New York City (NYC) has published an Executive Order (EO) which outlines the requirements of its vaccine mandate for all private NYC businesses as announced by Mayor DeBlasio on December 6, 2021. Below are some highlights from the EO and guidance issued by the City regarding implementation of the mandate.

Summary of the EO’s Requirements

As of December 27, workers in NYC who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine unless an exception due to a religious or medical accommodation applies, or a worker only ever enters the workplace for a quick and limited purpose.

Covered workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines), and if they do not have proof of a second dose within that timeframe, they must be excluded from the workplace until they can provide proof of vaccination for their second dose.

Businesses may not allow any unvaccinated workers to come to their workplace. A workplace is considered any location, including a vehicle, where an employee works in the presence of at least one other person.

Workers can show they have received the COVID-19 vaccine with the same proofs of vaccination that are accepted for Key to NYC (refer to section labeled “Proof of Vaccination”).

Covered Entities

“Covered entity” means a non-governmental entity that employs more than one worker in NYC or maintains a workplace in NYC; or a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business.

Covered Workplace

The EO defines “workplace” as any location, including a vehicle, where work is performed in the presence of another worker or member of the public.

Covered Workers

“Worker” means an individual who works in-person in NYC at a workplace in New York City. “Worker” includes a full- or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.

“Worker” does not include an individual who works from their own home (i.e., remote workers) and whose employment does not involve interacting in-person with co-workers or members of the public. “Worker” also does not include an individual who enters the workplace for a quick and limited purpose (for example, using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs).

Exceptions to the EO

The EO does not apply to covered 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 proof of full vaccination OR the following:

  • People who work alone — at home or otherwise (i.e., remote workers) — and do not have in-person contact with co-workers or others in the course of their business.
  • People who enter a workplace briefly for a limited purpose, such as to use the bathroom.
  • Non-NYC resident performing artists, college, or professional athletes, and anyone who accompanies them.
  • People who have requested reasonable accommodations for medical or religious reasons.

The City also has additional guidance on accommodations for workers on its webpage under the “Exceptions” tab. Note: If a worker is granted a reasonable accommodation, businesses must record the basis for the accommodation and keep supporting documentation in accordance with the guidance.

Required Documentation for Proof of Vaccination

Businesses must verify and keep a record of each worker’s proof of vaccination by December 27. There are three options for how businesses can meet this requirement:

  1. A worker’s record can be a copy of their proof of vaccination or a record of a reasonable accommodation with supporting documentation.
  2. Businesses can create their own paper or electronic record that includes the following information for each worker:
    • Worker’s name
    • Whether the worker is fully vaccinated
    • For workers who submitted proof of the first dose of a two-dose vaccine, the date by which they can provide proof of a second dose (no later than 45 days after submitting proof of the first dose)
    • Record of reasonable accommodation with supporting documentation
  3. Businesses may check each worker’s proof of vaccination before they enter the workplace each day. They must keep a record of each verification.

The guidance also states an acceptable form of identification must also be provided with the proof of vaccination and may include one of the following:

  • Driver’s license
  • Non-driver government ID card
  • ID NYC card
  • Passport
  • School or work ID card

Note: Non-employees, such as contractors, must provide vaccination proof to their employers. Businesses may request that a contractor’s employer confirm proof of vaccination. Businesses must then keep a log of these requests and the confirmations they receive.

Notice Requirement

By December 27, businesses must complete a certificate affirming they are in compliance with this requirement and post it in a public place. A link to the required “Affirmation of Compliance with Workplace Vaccination Requirements” is available here. The sign is available in multiple languages.

Note: Employers who previously posted a notice per the “Key to NYC” requirements for restaurants, fitness centers, and entertainment venues, do not need to post the additional attestation sign.

Additional Information

Documentation, including proof of vaccination or documents related to an accommodation must be treated as confidential and should be kept separate from the employee’s general personnel file and should only be accessed by individuals who have a legitimate need to access such information.

Workers who do not meet an exemption and who refuse to provide proof of vaccination are required to be excluded from the workplace, but the guidance states that an employer is not obligated to discipline or termination their employment; this decision would be up to the employer. Alternatively, an employer may also consider whether remote work may be an option.

The EO and guidance does not mention any requirements related to booster shots, so it would be presumed that employees are only required to have their primary vaccination series.

The City has prepared a checklist/flyer to assist with compliance and has also published frequently asked questions to assist employers.

The City also advises small employers who need compliance assistance to call the NYC Department of Small Business Services hotline at 888-SBS-4NYC (888-727-4692).

HR Works will continue to monitor this topic and provide additional information as it becomes available.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.