(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:
The NYC vaccine mandate includes exemptions for:
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:
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:
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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