Rules and regulations regarding New York City’s vaccination mandate for employees and patrons of certain indoor activities clarify the application of the mandate, including exemptions and record keeping requirements.
On August 16, 2021, New York City (the “City” or “NYC”) issued an emergency executive order (the “Order”) and an FAQ containing details of the City’s requirement that individuals be vaccinated against COVID-19 in order to participate in, or be employed at, certain indoor activities as discussed in our prior alert. The Order details the establishments covered, the requirements of the mandate, the timeline of the mandate and certain exceptions.
What Businesses are Covered by the Order?
The mandate applies to indoor entertainment and recreational settings, indoor food services and indoor gyms and fitness settings. The Order defines these categories as follows:
What is Required by the Order?
Pursuant to the Order, all covered businesses shall not permit a patron, employee, intern, volunteer or contractor aged 12 or older to enter the premises without providing proof that they are vaccinated against COVID-19 and identification bearing the same identifying information as the proof of vaccination. Covered businesses must also post a required poster in a place clearly visible to patrons before entering their business. The poster can be found here. Finally, covered businesses must develop and maintain a written policy outlining their protocol for implementing and enforcing the requirements of the Order. This policy must detail how the covered business will verify proof of vaccination status for staff and patrons.
Children under the age of 12 are not covered by the mandate as they are not eligible for vaccination. These children may enter covered businesses without proof of vaccination. However, they must wear a face mask, when not eating or drinking, if they are unable to maintain six feet of social distance from others.
What Vaccines are Acceptable?
Acceptable vaccines are those authorized for emergency use or licensed for use by the US Food and Drug Administration or authorized for emergency use by the World Health Organization. At the time of this alert, that is limited to:
What is Valid Proof of Vaccination?
Acceptable proof of vaccination includes:
Who is Exempt from the Vaccination Mandate?
The Order identifies four categories of persons who are not subject to the vaccination mandate. However, while exempt from these vaccination requirements, these individuals must wear a mask at all times when they are unable to maintain six feet of distance from other individuals except when they are eating and drinking. The exempt categories include:
Surprisingly, the Order does not include an exception for individuals who are unable to be vaccinated due to an underlying health condition or sincerely held religious belief. Nor do the FAQs provide for any such exceptions. Significantly, the FAQs, in response to the question “Do I need to provide any reasonable accommodations to patrons and employees?”, state that businesses should consider accommodations while being mindful of the purpose of the Order.
However, the Order directs the City’s Commissioner on Human Rights to develop guidance to assist covered businesses to comply with the Order consistent with the requirements of the New York City Human Rights Law. Accordingly, we still recommend that covered businesses accommodate individuals who are unvaccinated to an underlying health condition or sincerely held religious belief unless future guidance from the Commission on Human Rights states otherwise. Some examples of such accommodation for guests could include outdoor dining, requiring masks when not eating or drinking, and requiring proof of a negative test within 48 hours of dining. Some examples for employees could include a weekly testing requirement, assigning them to outdoor dining only and requiring masks.
What are the Deadlines to Comply with the Order?
The Order goes into effect on August 17, 2021. However, the City will not issue fines, penalties or forfeitures for violations until September 13, 2021.
What are the Penalties for Failure to Comply with the Order?
A first violation of the Order will result in a $1,000 fine. A second violation within 12 months of the first violation will result in a $2,000 fine. All further violations within 12 months of the second violation will result in a $5,000 fine.
What Do Covered Businesses Need to Do Now?
With respect to employees, covered businesses should immediately survey their workforce to determine whether any employees remain unvaccinated and advise them about this mandate. Employers should advise employees that they should receive their first dose of the COVID-19 vaccination immediately subject to required reasonable accommodations. Covered businesses should track all employees’ vaccination status in order to ensure compliance with the vaccination requirement for employees. Should employees fail to provide proof of vaccination, contact counsel to discuss appropriate next steps.
Covered businesses should also determine how to implement the mandate and reduce the plan to writing, pursuant to the requirements of the Order, and post the required poster at its entrances.
Please contact an attorney in MSF’s Employment Group if you need assistance with respect to this information including assistance preparing a compliant plan and with any questions regarding accommodations.
Andrea B. Neuman
Partner | Chair, Employment
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Gregg M. Kligman
Counsel | Employment
(646) 273-8209 | firstname.lastname@example.org
Associate | Employment
(212) 655-3580 | email@example.com
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