(Employment Practices- December 2021, Updated February 1, 2022)

Under the NYC vaccine mandate, as of December 27, covered workers must show proof they have received at least one dose of a COVID-19 vaccine. Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines). Covered workplaces are required to exclude workers from the workplace if they fail to meet or are not exempt from these requirements.

The NYC vaccine mandate applies to:

• All employers that employ one or more workers in NYC or that maintain a workplace in NYC and self-employed individuals and sole proprietors who work at a workplace or interact with workers or the public in the course of their business except businesses already subject to another Order of the Commissioner of Health and Mental Hygiene, Board of Health, the Mayor, or a State or federal entity that is in effect and requires them to maintain or provide proof of full vaccination. Click here to read about OSHA requirements. Click here to read about the CMS mandate.

• All individuals who work in-person in NYC at a “workplace,” which is “any location, including a vehicle, where work is performed in the presence of another worker or member of the public.” This includes full-time employees, as well as part-time workers, interns, volunteers, and contractors.

The NYC vaccine mandate includes exemptions for:

• Individuals who work alone, at home or otherwise, and do not have in-person contact with co-workers or others in the course of their business;

• Individuals who enter the workplace briefly and for a limited purpose;

• Non-NYC residents who are performing artists, athletes, or individuals accompanying such performing artists or athletes who do not have to display proof of vaccination pursuant to the Key to NYC program; and

• Individuals who have been granted a reasonable accommodation.

Reasonable Accommodations

Guidance issued by the NYC Dept. of Health can be found here.  

The Guidance explains that when applying vaccine requirements, employers must consider requests for reasonable accommodations that are needed because of disability, pregnancy, childbirth, lactation, religious beliefs or observances, or status as a victim of domestic violence, stalking, or sex offenses. If an employee requests an exception to a vaccine requirement or additional time to provide their proof of vaccination for one of these reasons, the employer must engage them in a cooperative dialogue, or a good faith discussion, to see if a reasonable accommodation is possible. Employers may continue to allow workers who have requested an accommodation to enter the workplace while the request is pending.

The Guidance also provides examples of reasonable accommodations such as working remotely, or regular testing for COVID-19 infection and wearing personal protective equipment, changing workstations or work schedules to avoid close contact with coworkers or customers, and/or leaves of absence.

Employers do not have to grant any reasonable accommodation that would cause a direct threat to other employees or customers or the requester (for example, allowing an unvaccinated employee to engage in a high-risk activity, such as yelling or exercising, while in close proximity to others, or to work in close proximity to high-risk individuals), or otherwise impose an undue hardship on the employer’s business. The Guidance lists factors that may be considered as to undue hardship:

• the nature and cost of the accommodation needed;

• the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at the facility; the effect on expenses and resources of the facility;

• the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);

• the type of operation of the employer, including the structure and functions of the workforce, the geographic separatness and the administrative or fiscal relationship of the facility involved in making the accomodation to the employer;
  

• the impact of the accommodation on the operation of the facility

Click here for EEOC guidance on factors that should be considered to determine if an undue hardship would be created by an accommodation. Guidance issued by the NYC Commission on Human Rights can be found here.

If there is no reasonable accommodation that would enable an unvaccinated employee to continue performing job duties without posing a direct threat or an undue hardship, an employer can offer a leave of absence until the employee is able to provide proof of vaccination, or until it is otherwise safe for them to return to work. Employers do not need to pay employees during a leave of absence unless the employer pays other workers who are unable to work for similar reasons.

The NYC DOH Guidance provides checklists that employers may use to evaluate exemption or accommodation requests (the Guidance points out that the checklists are not legal advice but instead, guidance only).

The Guidance points out the New York City Human Rights Law (“NYCHRL”) requires that religious accommodations be considered for mainstream religions and employees who have religious, ethical, or moral beliefs that are sincerely held with the strength of religious views; but the NYCHRL does not cover social, political, or economic views, or personal preferences - such views or preferences are not subject to accommodation or exemption.

Covered employers must verify vaccination status of covered workers by doing one of the following:

• Maintain a copy of each worker’s proof of vaccination or reasonable accommodation documentation;

• Maintain a record (paper or electronic) of: (1) the worker’s name; (2) whether the worker is fully vaccinated; (3) the date by which proof of a second dose must be provided (for workers who submit proof of partial vaccination); and (4) for workers who do not submit proof of vaccination because of a reasonable accommodation, that such accommodation was provided; or

• Check each worker’s proof of vaccination before they enter the workplace each day and keep a record of each verification.

• Non-employee workers, such as contractors, must provide vaccination proof to their employers. Businesses may request that a contractor’s employer confirm proof of vaccination. Businesses must then keep a log of these requests and the confirmations they receive.

Covered employers were required to complete and post in a public place a certificate affirming compliance by December 27, 2022. You can get the certificate here.

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