Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 3, 2021, New York City Mayor Bill de Blasio announced the nation’s first vaccine mandate applying not only to employees, but also patrons of indoor dining facilities, indoor fitness facilities, and indoor entertainment facilities. The measure is described as the “The Key to NYC Pass,” and both employees and patrons who want to access these facilities will have to show that they have received at least one dose of the COVID-19 vaccine as a condition of entry. The mayor explained that this mandate is necessary to combat the surge in COVID-19 cases caused by the Delta variant and to continue the city’s economic recovery. At this time, there is no alternative to “test out” of the announced mandate for those who cannot receive the vaccine based on medical contraindication, religious objection or age, or those who have declined to get vaccinated.
The Vaccination Mandate
The new policy will be phased in over the coming weeks, with the final details of the policy to be published and implemented during the week of August 16, 2021. The city will begin inspecting facilities and enforcing the new vaccine mandate beginning the week of September 13, 2021. The mayor noted that a Mayoral Executive Order and a Health Commissioner’s Order will be issued to make the vaccination mandate “legal.” The city will mount an information campaign over the next few weeks so that businesses, employees and patrons are aware of the requirements of the new mandate.
Predictably, the first vaccination mandate of this type in the nation has caused quite a stir. Some have protested the measure’s name, noting that a “Key to the City” is intended to honor distinguished persons, whereas this mandate reduces access to public accommodations for those who cannot be vaccinated.1 The mandate does not yet account for those who are unable to be vaccinated for medical or religious reasons as well as children under age 12 who are not eligible for vaccination.
Vaccination or Mask Requirements for City Employees and Contractors
Separately, as the mayor previously announced, all current city employees will be required to be vaccinated or “test out” on a regular basis by September 13, 2021. Mayor de Blasio issued Executive Order 75 on August 2, 2021, requiring all newly hired city employees to provide proof of at least one dose of the vaccination upon hire and proof of full vaccination within 30 days thereafter. For workers in high-risk health and hospital settings, including foster care, shelters, and senior centers, the mandate will take effect on August 16, 2021. Similarly, New York State Governor Cuomo announced that all state employees will have to be fully vaccinated against COVID-19 by Labor Day or undergo weekly testing. “Testing out” under the New York City requirement means providing a negative PCR test taken no more than 48 hours before the result is presented. In comparison, there is no “testing out” option for private employees or patrons with respect to the new Key to NYC Pass mandate.
Previously, on July 31, 2021, Mayor de Blasio issued New York City Executive Order 74, which requires, effective August 2, 2021, that all New York City agencies ensure that their contractors who work in public-facing positions where they may physically interact with city employees or members of the public are either fully vaccinated or wear face coverings at work. City agencies must request this information from their contractors, and the contractors are required to respond to such inquiries.
Mayor de Blasio has rejected calls to restore a public mask mandate regardless of vaccination status, however, despite the CDC’s recommendation to take this step in areas of “substantial” or “high” COVID-19 transmission and the fact that New York City currently meets that criterion. Instead, New York City is squarely focusing on vaccination rather than other safety measures to combat the pandemic.
What Constitutes Proof of Vaccination?
At the press conference announcing the measure, Mayor de Blasio suggested that the mandate simply involves checking a vaccination card, the Excelsior Pass App or the new New York City COVID Safe App. The New York City App merely captures a picture of a vaccination card, however, and does not verify that the underlying information is accurate. Meanwhile, the Excelsior Pass App is able to verify information for individuals vaccinated in New York State only, and therefore cannot accommodate the high volume of domestic and foreign visitors and commuters to New York City. The continuing lack of a widely available, consistent standard for verifying vaccination status poses significant challenges to any mandate applicable to the general public. Even a reliable digital solution will exclude those who do not have smartphones.
Are Children Under 12 Barred From Entry?
It is not clear whether children who are not eligible for vaccinations will be prohibited from entering covered institutions with their parents or guardians. It will create obvious difficulties for both businesses and patrons if vaccinated adults cannot enjoy restaurants, museums, theaters or other entertainment activities with their children who are not eligible for the vaccination. Mayor de Blasio stated at a follow-up press conference on August 4, 2021 that he would not want to separate children who are ineligible for the COVID-19 vaccination from their vaccinated parents. This issue may be further clarified when the actual executive order is issued.
Do Business Owners Have to Accommodate People Who Cannot Be Vaccinated?
Some people are not able to receive the available vaccinations due to medical contraindication or religious reasons. Employers will be required to engage in the interactive process with their employees in these categories regarding possible reasonable accommodations. New York City Health Commissioner Dave Chokshi noted during the press conference that with policies of this type, reasonable accommodations will have to be considered. Employers will have the additional burden of documenting their “cooperative dialogue” and ultimate determination about such accommodations, under the amendments to the NYC Human Rights Law that became effective in October 2018. It is not clear, however, whether business owners similarly will be required to engage in the interactive process with every patron who claims that they cannot be vaccinated due to a disability or sincerely held religious belief, or how this process could reasonably take place.
How Do Business Owners Defend Against Violations that Result in Fines?
Mayor de Blasio stated that business owners that fail inspections relating to this mandate will be fined. It is not yet known what the inspection or penalty phases will look like or how business owners may defend against such violations. Will they have to maintain records of all their customers, and for how long? What privacy concerns will be implicated? Will businesses have to maintain proof that a customer presented a medical need for accommodation and therefore was permitted entry without vaccination? Will that “proof” itself be medical documentation? Must business owners turn over such documentation to the city to defend against a violation? All of these questions remain unanswered.
We will continue to monitor developments in this area and provide updates as additional details become available.
1 From the Archives of the Mayor’s Press Office, April 27, 1999 (New York, NY):
The Key to the City honors distinguished persons, honored guests and outstanding civic contributors to New York City. The presentation of a Key to the City can be traced back to medieval times, when cities were enclosed by walls and locked gates. By the middle of the 1800's [sic], it became customary to give a Key to the City as a direct symbol of the City's wish that a guest feel free to come and go at will.