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On December 15, New York City released guidance on the new private sector COVID-19 vaccine mandate set to take effect on December 27. The new order is the strictest in that nation and comes amid omicron’s emergence, delta’s severity and the holiday season. Below, we provide answers to the key questions NYC employers may have to ensure compliance with the mandate.

Which NYC employers are covered by the mandate?

The mandate applies to any non-governmental entity that employs more than one person in NYC or maintains or operates a workplace in NYC (a Covered Entity), regardless of its industry. “Workplace” is defined as any place where work is performed in the presence of another worker or a member of the public, including vehicles. Self-employed individuals and sole proprietors are not covered by the mandate unless they work at a NYC workplace or interact in person with other workers or members of the public as part of their job duties.

What workers are covered?

Employers must collect proof of vaccination from all full- or part-time employees, interns, volunteers, or contractors. The mandate includes exemptions for those who:

  1.  Work remotely full-time
  2. Only enter the workplace for a quick and limited purpose,
  3. Are performing artists or athletes who are not required to be vaccinated per the Key to NYC program, or
  4. Are granted a reasonable accommodation based on their religion or medical condition.

Purposes characterized as “quick and limited” include using the bathroom, making a delivery, or receiving an assignment before leaving to begin a solitary assignment.

Do workers need to show proof of a two-dose vaccine?

No, workers can show proof of either a single-dose or a two-dose vaccine. Proof of at least one dose of any COVID-19 vaccine must be submitted by December 27. If an employee only submits proof of one dose of a two-dose vaccine by the deadline, they must submit proof of the second dose within 45 days after proof of the first dose was provided.

What types of vaccination records do Covered Entities need to maintain?

Covered Entities must maintain one of the following records for each worker:

  • A copy or picture of the worker’s proof of vaccination; or
  • An employer-created paper or electronic record including:
    • The worker’s name;
    • Whether the worker is fully vaccinated; and
    • The date by which the worker must submit proof of their second dose of a COVID-19 vaccine (for workers who have only submitted proof of the first dose of a two-dose vaccine).

Covered Entities can also opt to collect either of the above from all contractors or request that the contractor’s employer confirm that the contractor is vaccinated. If a Covered Entity chooses the latter, it must maintain a record of its request and the related confirmation.

Importantly, all of the above records must be maintained securely and separately from any personnel files and should only be accessible to a limited number of people who have a legitimate need to access the information.

Do Covered Entities need to maintain records pertaining to reasonable accommodations?

Yes. If an employee requests a reasonable accommodation based on their religion or medical condition that the Covered Entities approves, the Covered Entity must maintain: (1) a record of when the reasonable accommodation was granted, (2) the basis for the grant, and (3) any supporting documents the employee provided for the reasonable accommodation. Any requests for reasonable accommodations must be submitted by December 27, and Covered Entities may allow workers to continue coming to the workplace while their request is pending.

Must Covered Entities place non-compliant workers on unpaid leave?

No. If a worker refuses to show proof of vaccination and does not qualify for an exemption, the Covered Entity is only required to prohibit the worker from entering the workplace.

Do Covered Entities need to confirm compliance with the mandate?

Yes. All Covered Entities must complete the one-page attestation provided by the Department of Health and Mental Hygiene and post it in a conspicuous location in the workplace by December 27.

How will the mandate be enforced?

Inspectors from several NYC agencies will begin enforcing the mandate on December 27, and Covered Entities must be prepared to make their vaccination and reasonable accommodation records available upon request.

What penalties will a Covered Entity face if it does not comply with the mandate?

Any Covered Entity that does not comply with the mandate will be subject to a fine of $1,000 and increasing penalties if violations continue.

Employer Takeaways

  • Notify employees of the new mandate.
  • Implement procedures to verify vaccination status and prepare to collect vaccination records as confidential medical information.
  • Establish a mandatory vaccination policy and a process for employees to request reasonable accommodation based on their religion or medical condition.
  • Be prepared to make your records available for inspection and post the required attestation in a conspicuous location by December 27.