New York City Imposes Mandatory Vaccination Requirement On Private Employers

New York City Imposes Mandatory Vaccination Requirement On Private Employers

Starting December 27, 2021, pursuant to a December 13, 2021 Order of the Commissioner of Health and Mental Hygiene (the “NYC Vaccine Mandate”), workers in New York City (NYC) must provide proof of vaccination against COVID-19 to a covered entity before entering the workplace. Any worker who has not provided such proof must be excluded from the workplace, unless the worker is entitled to a reasonable accommodation based on a medical or religious reason.

The NYC Vaccine Mandate defines a “covered entity” as a business that employs more than one worker in NYC or that operates a workplace in NYC, as well as any self-employed individual or solo practitioner who works at a workplace or who interacts with workers or the public in the course of business. A “worker” is defined as any individual who works in-person in NYC at a workplace and includes a full-time or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered entity, as well as a self-employed individual or solo practitioner. “Workplace” is defined as any location where work is performed in the presence of another worker or member of the public, including vehicles. The NYC Vaccine Mandate does not apply to those who work remotely.

Because production companies are the employers responsible for controlling worksite activities and for providing a safe work environment for their production workers, production companies are responsible for complying with the NYC Vaccine Mandate. Also, the NYC Vaccine Mandate would control over any contrary terms of the Motion Picture Industry Return to Work Agreements. Failure to comply with the NYC Vaccine Mandate could subject an employer to a $1,000 fine, along with escalating penalties if violations persist.

The NYC Vaccine Mandate Requires Employers To Verify Workers’ Proof Of Vaccination

Each worker who works in-person in NYC must provide proof of at least one dose of the COVID-19 vaccine by December 27. For those who are not yet fully vaccinated, proof of the second dose must be provided to the employer within 45 days from the date on which proof of the first dose was provided. If the worker does not provide proof of a second dose within the 45-day timeframe, the employer must exclude that worker from the workplace until (s)he provides such proof.

Employers may verify workers’ proof of vaccination by either (1) making a copy or taking a picture of the vaccination proof; or (2) creating their own paper or electronic records, which must include the following information: (a) the worker’s name; (b) whether the worker is fully vaccinated; and (c) for a worker who submits proof of the first dose of a two-dose vaccine, the date by which the proof of the second dose will be provided.

The NYC Vaccine Mandate Requires Employers To Post An Affirmation Regarding Compliance In A Conspicuous Location

The Department of Health and Mental Hygiene created a one-page attestation that employers must fill out and post in a conspicuous location at the workplace by December 27, 2021. The attestation confirms that the employer is complying with the NYC Vaccine Mandate.

Exceptions to NYC’s Vaccine Mandate

Proof of Vaccination Is Not Required If The Worker Is Only Entering For A Quick And Limited Purpose

Workers are not required to provide proof of vaccination in order to enter the workplace for a quick and limited purpose, including to use the restroom, make a delivery, clock in, or to receive an assignment before leaving the workplace to work on the assignment away from others, for example.

Employers Still Must Reasonably Accommodate For Medical Or Religious Reasons

Workers may request a reasonable accommodation to be exempt from the mandatory vaccination requirement. Employers may deny accommodation requests where undue hardship exists, as determined by analyzing certain factors, which include, but are not limited to:

1. The nature and cost of the accommodation;
2. The overall financial resources of the facility making the accommodation, along with the number of persons employed at the facility, and the effect on expenses and resources of the facility;
3. The overall financial resources, size, number of employees, and type of location of facilities of the employer;
4. The type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
5. The impact of the accommodation on the operation of the facility.

Examples of reasonable accommodations include telework or remote work, where possible, or weekly PCR testing for COVID-19 coupled with masking at all times while not eating or drinking.

An employer that approves a reasonable accommodation based on a medical or religious reason must maintain a record of: (1) when the accommodation request was granted; (2) the basis for granting the accommodation request; and (3) any supporting documents the worker provided to support the request for an accommodation.

Employers are advised to consult with their labor and employment counsel to determine how NYC’s new Vaccine Mandate impacts their workforce in NYC.

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For any questions about this Alert, you may contact:

Pantea Lili Ahmadi, Senior Corporate & Employment Counsel | pahmadi@ep.com

Alan Wu, Director, Employment & Labor Relations Counsel | awu@ep.com

Joe Scudiero, Senior Vice President & Chief Labor Counsel | jscudiero@ep.com