On August 3, 2021, New York City Mayor Bill de Blasio announced the “Key to NYC” program (“Key to NYC” or the “Program”), which implemented new mandatory COVID-19 vaccination requirements for employees and patrons of certain indoor establishments in New York City.  Effective August 17, 2021, business entities covered under Key to NYC must require proof of COVID-19 vaccination for employees, patrons and most other individuals entering the premises, with certain limited exceptions (outlined below).  On August 17, 2021 (the Program’s effective date), the City simultaneously released new guidance and Frequently Asked Questions regarding how covered businesses may comply with Key to NYC, which are summarized below.  Because enforcement of the Program begins on September 13, 2021, New York employers covered by the Program should be aware of its implications and take necessary steps towards compliance.

What entities are covered under Key to NYC?

The following entities are covered under the Program:

1. Indoor Dining Establishments. Any food establishment that is part of the NYC Department of Health and Mental Hygiene’s restaurant grading program that offers indoor dining or beverage service qualifies as a covered entity. Covered entities include restaurants, catering halls, event spaces, hotel banquet rooms, bars, nightclubs, cafeterias, grocery stores with indoor dining, coffee shops, fast food or quick service establishments with indoor dining, businesses that operate indoor seating at food courts (including in hotels and malls), and businesses that provide on-premises catering services.  If a food establishment offers only take-out, delivery or outdoor dining, any indoor tables, chairs, or other furniture used for indoor dining must be removed or blocked off so that they are unavailable for use.

2. Indoor Fitness Establishments. Covered entities include standalone gyms and fitness centers, hotel gyms and fitness centers, gyms and fitness centers in higher education institutions, yoga, Pilates, dance and barre studios, boxing and kickboxing gyms, fitness boot camps, indoor pools, CrossFit or other plyometric boxes, and other places holding indoor group fitness classes. For purposes of the Program, a “group fitness class” is defined as two (2) or more participants led by an instructor.

3. Indoor Entertainment Establishments. Covered entities include movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums and galleries, aquariums, zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers. If an indoor entertainment establishment has both indoor and outdoor portions, only the indoor portion is covered by the Program.

Indoor dining, entertainment and fitness establishments in the following settings are exempt from Key to NYC: (i) private residential buildings where the setting is only available to residents; (ii) office buildings where the setting is available only to office staff; (iii) pre-K through grade 12 schools; (iv) senior centers; (v) community centers; and (vi) child care programs.

What are a covered entity’s obligations?

Covered entities must require all individuals (with certain exceptions noted below) to display proof that they have received at least one (1) dose of a COVID-19 vaccine and, for anyone appearing to be 18 years of age or older, proof of identification.  Specifically, a covered entity must require proof from: (i) employees; (ii) patrons; (iii) interns; (iv) volunteers; and (v) contractors who are residents of New York City.  Businesses subject to the Program may choose to keep a record of people who have previously provided proof of vaccination and identification rather than requiring proof upon each entry into the establishment.

There are certain exceptions to this mandate.  Specifically, covered entities need not require proof of vaccination or identification for: (i) individuals who need to use the bathroom or a locker room to change clothes; (ii) individuals making deliveries or pickups; (iii) individuals who enter the establishment solely for the purpose of making necessary repairs; or (iv) individuals picking up items for takeout or delivery.  However, all of the individuals exempted above must wear a face mask if they cannot maintain social distancing.

What about individuals who cannot be vaccinated?

The Program does not require covered entities to provide a reasonable accommodation to individuals who cannot be vaccinated, though they are encouraged to “consider appropriate reasonable accommodations.”  The scope and nature of such accommodations are not specified in the City’s guidance.

Individuals under the age of 12 (who are not eligible for vaccination) may enter a covered entity, but must wear a face mask, except when eating and drinking, whenever they are unable to maintain six (6) feet of social distance.

What counts as “indoors”?

An “indoor” space is one that has a roof or overhang and three or more walls.  However, the following structures do not count as indoor spaces: (i) structures on a sidewalk or roadway that are entirely open on the side facing the sidewalk; and (ii) outdoor dining structures designed for individual parties (i.e., plastic domes) so long as the space has adequate ventilation.

What forms of proof of vaccination and identification are acceptable?

The following forms of proof of vaccination are acceptable: (i) a photograph or hard copy of a CDC vaccination card or other official vaccination record; (ii) the NYC COVID Safe App; and (iii) the New York State Excelsor App.  Covered entities are not required to verify that a vaccination record is real, though are encouraged to report known fake vaccination records to 311.

Acceptable proof of identification (bearing the same identifying information as the proof of vaccination) must contain either: (i) the individual’s name and photograph; or (ii) the individual’s name and date of birth.

What if an individual refuses to show proof of vaccination or refuses to cooperate?

Covered entities must refuse entry to anyone who refuses to show proof of vaccination and identification, except for “very quick and limited purposes,” such as using the bathroom, picking up food, paying a bill or changing in a locker room.  Anyone entering for such quick and limited purposes must wear a mask if they are unable to maintain social distancing.  The New York City Office of Administrative Trials and Hearings will post a webinar regarding methods of conflict resolution no later than August 20, 2021.  Covered entities with safety concerns from an uncooperative person are encouraged to call 911.

Are there any notice requirements?

Yes.  Covered employees must post a sign notifying individuals about the vaccination requirement in a location that is easily visible to patrons before they enter an indoor area.  Businesses may use the poster created by the City or create their own with identical language, so long as it is at least 8.5×11 inches and in at least 14-point font.

Are there any recordkeeping requirements?

A covered entity must maintain on site a written record describing how it will verify proof of vaccination for staff and patrons and produce it for inspection on demand.  A covered entity is not required to keep records showing that it has satisfied the Program’s requirements, but it may keep a log of people who have previously provided proof of vaccination and identification for administrative convenience.

What are the penalties for noncompliance?

As of September 13, 2021, a noncompliant establishment may be fined up to $1,000.  Repeat violations may result in increased fines or other enforcement action.

We will continue to monitor this legislation and provide updates regarding Key to NYC as new information becomes available.

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.