On December 13, 2021, the New York City Department of Health issued an order, first announced by Mayor de Blasio on December 6th, mandating that all private sector employers in New York City verify their employees’ proof of vaccination and generally prohibit unvaccinated workers from entering the workplace. Unlike the OSHA mandate, which is not being enforced as it faces legal challenges, there is no option for employees to submit to periodic COVID-19 testing in lieu of vaccination under the mandate. The City released further guidance on the mandate today. Here is what employers need to know.
The mandate covers all employers in New York City, regardless of size. The mandate applies to all on-site employees, including those who work outside, but employees who are fully remote will not be required to be vaccinated. Further, the order allows for unvaccinated individuals to enter the workplace for a quick and limited purpose, such as making a delivery or clocking in before beginning a remote assignment.
Employees will need to have at least one vaccine dose administered by December 27, 2021, and employees receiving the Pfizer or Moderna vaccine must receive, and submit proof of, a second dose within 45 days of submitting proof of their first dose.
Employees must provide physical proof of vaccination to their employers by showing:
· A photo or hard copy of their CDC vaccination card or other official vaccine record;
· the NYC COVID Safe App, New York State Excelsior Pass, CLEAR’s Digital Vaccine Card or CLEAR Health Pass; or
· For those vaccinated outside of the United States, a photo or hard copy of an official vaccination record for one of the following vaccines: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.
Employers must maintain confidential records of employees’ proof of vaccination. The City advises that employers either (a) make a copy or take a picture of the proof of vaccination or (b) create a record that includes the employee’s name, whether the employee is fully vaccinated, and, if applicable, the expected date of the employee submitting proof of a second dose. Businesses do not need to keep records of an independent contractor’s vaccination status, but they must request confirmation of vaccination from the contractor’s employer. Both the request and the confirmation must be maintained as a record.
Workers who have a sincerely held religious belief (not a social or political belief) or a medical condition that prevents them from being vaccinated must apply for a reasonable accommodation by December 27, 2021. Once a request is made, employers must begin the reasonable accommodation process, during which the unvaccinated employee may continue working on site. City agencies may review an employer’s reasonable accommodation process and separately maintained accommodation records to ensure the business is handling requests promptly and appropriately.
Inspectors from various City agencies will begin enforcing the order on December 27, 2021. All inspectors, no matter which agency they are from, will be inspecting for compliance by reviewing records. Businesses that refuse to comply with the mandate will be subject to a $1,000 fine, followed by escalating penalties for subsequent violations. There is no private right of action; only the City can penalize an employer for non-compliance.
The Department of Health has created an attestation that employers must fill out and post in a conspicuous location by December 27, 2021. The attestation form can be found here.
About Paduano & Weintraub LLP
Paduano & Weintraub's Employment Group represents employers in all aspects of employment litigation and counseling. For companies of various sizes, ranging from large public companies to small family-owned businesses, we defend employers nationally, and across various industries, in state and federal actions and arbitrations brought by employees alleging discrimination, harassment and retaliation. We defend employers in single plaintiff and collective and class actions throughout the country alleging violations of the Fair Labor Standards Act and its state and local counterparts. We regularly represent employers in matters regarding restrictive covenants. We counsel clients in risk management by creating proactive solutions to workplace issues. We create and implement compliant and practical policies and best practices to help clients build a workplace infrastructure that balances business needs and legal compliance while mitigating short- and long-term risk. In that regard, we provide effective management-level training seminars and conduct employee harassment training and intervention. Our team responds to and manages the complex issues that arise from workplace crises, including high-profile sexual harassment complaints.