On December 6, 2021, New York City Mayor Bill de Blasio announced a vaccine mandate which requires that all private-sector employees who work in a workplace in the presence of another worker, or who interact with a member of the public, be vaccinated by December 27, 2021.  The mandate applies to approximately 184,000 businesses in the City.  It extends a vaccine mandate to those employees who were not previously covered by the “Key to NYC” vaccination requirements.  Accordingly, private sector employees who report to work in person or interact with the public will need to be vaccinated by December 27.

Why Is NYC Reaching Into the Private Sector?

The Mayor explained that this mandate furthers the City’s prioritization of public health and safety by ensuring that there is a vaccine mandate that universally reaches all areas of the private sector.  In addition, Mayor de Blasio explained that the mandate was partially influenced by concerns voiced by private-sector employees and employers who were signaling a need for broad, mandatory vaccinations in New York City.

The Mandate Details

On December 15, 2021, the Commissioner of Health and Mental Hygiene issued an Order and published FAQs and flyers for employers to reference.  The Order requires that beginning on December 27, 2021, any worker in New York City who performs work in person and/or interacts with a member of the public as part of their job must provide proof of vaccination against COVID-19 before entering the workplace.  Employers must exclude individuals who do not provide proof of vaccination, unless the individual is exempt based upon a reasonable accommodation for medical or religious reasons.

This mandate applies to every non-governmental workplace in New York City which employs one or more workers.  The mandate also extends to coworking spaces as well, which are treated as covered entities under the mandate.  Notably, self-employed workers and sole-proprietors are also subject to the mandate.  Self-employed workers and sole-proprietors are only exempt from the vaccination requirement if the individual works strictly from home or if the individual does not interact in person with anyone else in the course of business.

Vaccination Requirements

By December 27, 2021, all workers must provide proof of vaccination to their employer or have requested an accommodation for medical or religious reasons.  A worker who has only received the first dose of a two-dose vaccine is in compliance with the December 27 deadline, however, the worker must provide proof that the individual received the second dose of the vaccine within 45 days.  Workers who fail to provide proof of the second dose within the proper timeframe will be excluded from the workplace.

The Order does contain a narrow exception that allows an unvaccinated employee to enter a workplace for a quick and limited purpose like using the restroom, making a delivery, or clocking in and receiving an assignment before leaving the workplace to work elsewhere alone.  Such a worker would still be required to comply with mask requirements if they are on workplace premises.

The Order also provides that workers who have properly requested reasonable accommodations for medical or religious reasons by the December 27 deadline will not be excluded from the workplace.

Record Keeping Requirement

The Order requires employers keep a record of each worker’s proof of vaccination by either: (a) making a copy or digital image of the worker’s proof of vaccination; or (b) creating their own enterprise-level paper or electronic record which contains the worker’s name; the worker’s vaccination status (i.e., whether the worker is fully or partially vaccinated); and the dates of the first dose and the anticipated/scheduled date of a second dose for workers who submit proof that the worker received a first dose of a two-dose vaccine.  If this is the case, the employer must monitor the individual to ensure that such second dose actually gets administered and that the date of such second dose is properly reflected in the records.  Employers must also keep records of all reasonable accommodations provided for medical or religious reasons.

Employers Must Post an Attestation:

Finally, all employers must fill out and post an Attestation of their compliance with the mandate.  The Affirmation, which is available with the other materials released this week, must be posted in a public-facing, conspicuous location.

All employers with workplaces in New York City should review the Order and the FAQs as soon as possible, ensure they are in compliance with the rules, and post the Attestation by December 27.  We will continue to monitor for any new developments.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Alisa Sherbow also contributed to this update.