NYC Clarifies Dec. 27, 2021, Vaccine Mandate for all Private Employers

On December 15, New York City issued clarifications to its prior vaccine mandate and those clarifications can be found here: https://www1.nyc.gov/site/doh/covid/covid-19-vaccine-workplace-requirement.page.

As we advised in our prior bulletin, the New York City Commissioner of Health previously ordered that, commencing December 27, 2021, workers must have received at least one dose of a COVID-19 vaccine to work for a private employer at a New York City workplace. Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines). Pursuant to the Order, New York City employers are required to check each worker’s proof of vaccination before allowing the worker to enter the workplace; maintain and secure records of such proof of vaccination; make such records available for inspection upon request by a City agency; and post an Affirmation of Compliance in a conspicuous location at the workplace. The Order also states that private employers can adopt stricter standards than those contained in the Order. In fact, some private employers in New York City have already adopted a definition of fully vaccinated to include a booster shot six months after the initial vaccine shots.

The vaccine requirement includes, by definition, all employees, interns, volunteers or contractors and excludes persons who work at home; individuals who enters the workplace for a quick and limited purpose; and certain non-City residents who are performing artists or college or professional athletes or accompany such persons. The Order also provides for reasonable accommodations for medical reasons or religious beliefs.

On December 15, 2021, New York City issued guidance on the vaccine mandate for private employers on its Vaccination Requirement: Workplaces webpage and a newly added Frequently Asked Questions (FAQ) page. It also provided a sample of the Affirmation of Compliance that New York City employers must post in the workplace on its website. The FAQ page details which employers and individuals are covered by the new vaccine mandate and provides a broad range of examples, from a clothing store or grocery store to a taxicab or rideshare owner/operator to a speech therapist who visits clients in homes or a writer who rents a desk in a shared workplace, to illustrate what constitutes a covered entity or individual. Self-employed people and sole proprietors who interact with other coworkers or the public in the course of their work are also subject to the vaccine mandate. Further, the FAQ page also provides information about reasonable accommodations for religious beliefs and medical conditions and provides a link to a checklist for employers to follow regarding any requests for reasonable accommodations.

New York City’s new guidance also addresses how employers should obtain and maintain records of proof of vaccination, including the need to store vaccination information in a secure manner to ensure employee privacy. It also addresses a business’s obligation to check for proof of vaccination of individuals employed by its contractors who are working at the business’s workplace.

These new vaccine mandates are likely to be subject to several court challenges. However, due to the recent surge of COVID infections in New York and the new COVID variants, requests to courts to enjoin or delay these new vaccine mandates may be more difficult to sustain. To date, most courts have rejected most challenges to private employer vaccine mandates, as long as those mandates contain reasonable accommodations for medical or religious reasons. In fact, the Sixth Circuit recently lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard requiring COVID-19 vaccination or testing for employers with at least 100 employees. This decision may be an indicator of how the courts will treat these types of changes going forward.