Vax Up, Speak Up, or Stay Home: New York City Issues New Guidance on Vaccination Mandates for Private Workplaces and the Key to NYC Pass

As previously reported, New York City’s vaccination mandate for private employers goes into effect on December 27, 2021. This measure, issued as an order from the New York City health commissioner in response to a public health emergency, mandates that all private employers require proof of vaccination from all workers entering the workplace. On December 15, 2021, New York City published its guidance on the mandate as well as Frequently Asked Questions (FAQs). Separately, Mayor de Blasio issued a revised emergency order expanding the Key to NYC Pass for covered businesses to require employees and patrons, including children five years old and up, to be vaccinated to enter these indoor establishments. All this comes on the heels of New York State’s December 13, 2021 mask order, which requires that individuals wear masks in all indoor public places unless there is proof of vaccination as a condition of entry. This Insight summarizes the takeaways for employers operating in NYC.

Private Employer Update

Step One: Understand the Mandate.

Businesses may not allow any unvaccinated workers to enter the workplace after December 27, 2021 for the duration of the mandate, unless a reasonable accommodation has been made. A “workplace” is “any location — including a vehicle — where you work in the presence of at least one other person.”

Importantly, the new mandate does not apply to workplaces already covered by other federal, state or local mandates, including the Key to NYC Pass, discussed separately below, and the Centers for Medicare and Medicaid Services (CMS) mandate.1

Step Two: Verify & Record Vaccination Status of Employees.

Employers are expected to verify and document the vaccination status of all workers who regularly enter the workplace by December 27, 2021.2 There are three ways to do this:

  1. A worker’s record can be a copy of their proof of vaccination or a record of a reasonable accommodation with supporting documentation.
  2. Businesses can create their own paper or electronic record that includes the following information for each worker:
    1. Worker’s name
    2. Whether the worker is fully vaccinated
    3. For workers who submitted proof of the first dose of a two-dose vaccine, the date by which they must provide proof of a second dose (no later than 45 days after submitting proof of the first dose)
    4. Record of reasonable accommodation with supporting documentation
  3. Businesses may check each worker’s proof of vaccination before they enter the workplace each day. They must keep a record of each verification.

If the worker has received at least one dose of a COVID-19 vaccination by December 27, 2021, they are compliant with the mandate. Workers must then provide proof of their receipt of a second dose within 45 days if they have not already done so. Workers must be excluded from the workplace if they fail to show proof of full vaccination status before the 45-day window closes.

There is an exception to the no-entry rule for an unvaccinated worker who is only visiting the workplace for a “quick and limited purpose,” such as making a delivery.

Step Three: Assess Who May Receive an Exception and Accept Exception Requests from Employees.

The order carves out four “exceptions” to the vaccination mandate and provides that the following groups may continue to be unvaccinated:

This private sector workplace requirement does not apply to the following:

  • People 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.
  • People who enter a workplace briefly for a limited purpose, such as to use the bathroom.
  • Non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them.
  • People who have requested reasonable accommodations for medical or religious reasons. If a worker is granted a reasonable accommodation, businesses must record the basis for the accommodation and keep supporting documentation in accordance with the below guidance.

Step Four: Address Employees who Choose not to be Vaccinated or Fail to Respond to the Business’ Request for Vaccination Status.

Employers are not required to continue to employ those individuals who choose not to be vaccinated, but do not seek an accommodation for protected medical or religious reasons. Employers may allow such employees to continue working, but they may not permit them to enter the workplace for the duration of the health commissioner’s order. The FAQs note that social, political, and economic views are not protected bases on which to request exemption from the vaccination mandate.

The FAQs also state that employers may, but are not required to, discipline workers for non-compliance with the vaccination mandate and/or failure to provide information regarding vaccination status. The FAQs state:

Do I need to fire or discipline employees who refuse to comply with the order?

No. As long as you keep the worker out of the workplace, it is your decision whether to discipline or fire such worker, or if the worker can contribute to your business while working remotely.

Step Five: Assess Accommodation Requests and Engage in the Cooperative Dialogue.

Employees may request an exemption from the vaccination mandate as a reasonable accommodation for disability, pregnancy, childbirth, lactation, religious beliefs or observances, or status as a victim of domestic violence, stalking, or sex offenses. Employers should set up a process by which to evaluate these requests. Below is an outline of steps employers can take in assessing those requests.

  • First, the employee must affirmatively request an exemption as an accommodation based on one or more of the protected statuses listed above. An employee may also request an extension of time to show proof of vaccination beyond December 27, 2021, as an accommodation.3
  • Second, the employee must provide information to support their request for an accommodation based on a protected status.
  • Third, the employer should assess whether granting an exception to the vaccination requirement would pose an undue hardship. The city guidance recommends that employers review EEOC guidance and the city’s list of five factors in its “Guidance on Accommodations for Workers” in order to understand valid employer considerations when assessing undue hardship.
  • Fourth, the employer should assess the accommodations available to employees. City guidance provides an example of accommodations for employers to consider in its “Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements”:
    • The employee may work remotely;
    • The employee may submit to regular testing for COVID-19 infection and wear personal protective equipment;
    • The employee may change their workstation or work schedule to avoid close contact with coworkers or customers;
    • The employee may take an unpaid or paid leave of absence, depending on whether the employer pays other employees who are unable to work for similar reasons.

Note that although testing and masking and/or wearing other PPE may be considered as a reasonable accommodation to allow an unvaccinated employee to enter a workplace, the guidance is clear that an employer should not grant an accommodation “that would cause a direct threat to other employees or customers, or to the requester, or otherwise impose an undue hardship on the employer’s business.” A “direct threat” would be, for example, permitting an unvaccinated employee to “work in close proximity to high-risk individuals.” Additionally, if an employer permits in-office work as an accommodation for an unvaccinated worker after determining it will not pose a direct threat to anyone, the employer must institute a masking requirement for all employees at all times per the current state masking mandate and the New York Hero Act. Employers may also need to address accommodation requests from workers with respect to the mask mandate.

  • Fifth, the employer should document the process it followed, including the basis for the request and the outcome. This is known as the cooperative dialogue. The documentation should specify whether an accommodation was offered and if so the type and time limit (if any) of the accommodation. The employee should receive a written determination of any accommodation request.
  • Sixth, the employer must maintain documentation of accommodations as a business record. The city has provided forms in the “Guidance on Accommodations for Workers” as a possible means of satisfying this documentation requirement. The forms are titled: “Accommodation for Medical Reasons,” and “Accommodation for Religious Reasons,” and the city states that they are “intended to guide employers and managers in evaluating requests they may receive from workers for reasonable accommodations or exemptions” from the vaccine mandate. 

Employers may want to consult counsel before determining whether or not to grant an accommodation request as well as the details of the accommodation, such as whether testing, an alternative workspace, a leave of absence, or other accommodations may be offered and how they will be implemented, and whether the accommodation poses a direct threat to other workers.

Step Six: Assess Whether the State Mask Mandate Applies.

On December 10, 2021, New York Governor Kathy Hochul announced a state-wide mask mandate. Between December 13, 2021 and January 15, 2022, businesses and venues must require masks not only for staff but also for patrons age two and older.  Businesses that have implemented a proof of vaccination requirement as a condition of entry, however, do not need to impose an indoor masking rule.

For New York City employers, the December 27, 2021 vaccination mandate means that masks are not required if everyone in the physical workplace will be vaccinated. However, if an employer decides to accommodate an unvaccinated worker by permitting them to enter the workplace after assessing that the accommodation would not pose a direct threat to anyone, then everyone in the workplace must wear a mask. Masks also must be worn if an employer allows guests into the workplace without confirming their vaccination status as a condition of entry.

The FAQs for the mask mandate state that businesses may not “mix and match” by requiring only unvaccinated individuals to wear masks. In other words, “A business or venue must choose whether it will implement a full-course vaccine requirement or a mask requirement, which applies to both patrons and employees and then must be followed in its entirety throughout the facility at all times each day.”

Step Seven: Complete a Certificate Affirming Compliance.

No later than December 27, 2021, businesses must affirm compliance with the commissioner’s order by posting a certificate of compliance, which can be found here, in a public space visible to employees and workers.

Step Eight: Assess the Risks.

The FAQs state the following regarding penalties for non-compliance.

Are there any penalties for noncompliance?

Our goal is always to educate and work with businesses to help them achieve compliance. It’s always our preference to ensure compliance and to avoid fines and penalties.

If a business refuses to comply, they are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

Employers should also consider and prepare for the risk of an outbreak in the workplace, as well as potential complaints from employees. Such complaints may be raised not only by individuals denied access to the workplace based on their unvaccinated status but also by those concerned that an employer is creating an unsafe working environment and “direct threat” to their health and safety by allowing unvaccinated individuals in the workplace. Consistent with their obligations under the HERO Act, employers should communicate transparently with employees about safety matters and provide an avenue for employees to raise concerns.

The Key to NYC Update for Indoor Entertainment, Recreation, Dining and Fitness Establishments

The private-sector vaccination mandate does not cover those entities that are already covered by another order that requires them to maintain or provide proof of full vaccination.  As we previously reported, New York City Mayor de Blasio issued Emergency Executive Order No. 225 on August 16, 2021, referred to as “The Key to NYC.”  The Key to NYC, which took effect on August 17, 2021, requires that patrons and employees of certain indoor entertainment, recreation, dining and fitness establishments prove that they have been vaccinated. Thus, workspaces that are covered by the Key to NYC are not covered by the new vaccination mandate for private NYC employers, and must continue to follow the Key to NYC guidelines, as recently updated.4 

The original emergency executive order has been updated several times, and the most recent emergency executive order implementing the Key to NYC, issued on December 15, 2021, now requires that employees and patrons provide proof they are fully vaccinated. It also extends the vaccination requirement so it covers patrons ages five and older (who must have received at least one dose of a COVID-19 vaccine by December 27, 2021 and the second dose not more than 45 days later).

Who is Covered by the Key to NYC?

The Key to NYC applies to any “covered entity” that operates one or more “covered premises,” except that it does not include pre-kindergarten through grade 12 public and non-public schools and programs, houses of worship, childcare programs, senior centers, community centers, or as otherwise indicated. 

“Covered premises” means any of the following locations, which are more specifically defined in the statute:

  • Indoor Entertainment and Recreational Settings, and Certain Event and Meeting Spaces including indoor portions of movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums, aquariums, zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, hotel meeting and event spaces, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers; 
  • Indoor Food Services, including indoor portions of food service establishments offering food and drink, including all indoor dining areas of food service establishments; businesses operating indoor seating areas of food courts; catering food service establishments that provide food indoors on its premises; and
  • Indoor Gyms and Fitness Settings, including indoor portions of standalone and hotel gyms and fitness centers, gyms and fitness centers in higher-education institutions, yoga/Pilates/barre/dance studios, boxing/kickboxing gyms, fitness boot camps, indoor pools, CrossFit or other plyometric boxes, and other facilities used for conducting group fitness classes.

There are very limited exceptions to those who are covered, however such individuals must wear a face mask at all times when inside covered premises, including individuals entering for a “quick and limited purpose.”

What Does the Key to NYC Require?

The Key to NYC provides that a covered entity cannot permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter covered premises without displaying “proof of vaccination” and identification bearing the same identifying information as the proof of vaccination. However, for a child under the age of 18 only proof of vaccination, and not additional identification, is required to be displayed.  The term “worker” is defined as it is under the private sector mandate as set forth above.  A “patron” is defined as any individual 5 years of age or older who patronizes, enters, attends an event, or purchases goods or services within a covered premise.

“Proof of vaccination” requires “proof of receipt of a full regimen of a COVID-19 vaccine,” except that for children who are 5 years of age or older as of December 13, 2021, but younger than 12 years of age, “proof of vaccination” means proof of receipt of at least one dose of such a vaccine until January 28, 2022, after which time proof of receipt of a full regimen will be required. 

In addition, every covered entity must develop and keep a written record describing the covered entity’s protocol for implementing and enforcing the requirements of the Key to NYC.

Every covered entity must also be able to provide proof it checked the vaccination status of its workers by:

  • Maintaining a copy of workers’ proof of vaccination or, if applicable, a record of reasonable accommodation(s); or
  • Maintaining a record of such proof of vaccination, provided that such record must include:
    • the worker’s name; and
    • whether the person is fully vaccinated; and
    • for a worker who submits proof of the first dose of a two-dose vaccine, the date by which proof of the second dose must be provided, which must be no later than 45 days after the proof of first dose was submitted; and
  • for a worker who does not submit proof of COVID-19 vaccination because of a reasonable accommodation, the record must indicate that such accommodation was provided, and the covered entity must separately maintain records stating the basis for such accommodation and any supporting documentation provided by such worker; or
  • Checking the proof of vaccination before allowing a worker to enter the workplace and maintain a record of the verification.

For a non-employee worker, such as a contractor, a covered entity may request that the worker's employer confirm the proof of vaccination in lieu of maintaining the above records. Covered entities must maintain a record of such request and confirmation.

Covered entities must also post a sign in a conspicuous place that is viewable by prospective patrons prior to entering the establishment, which alerts patrons to the vaccination requirement and informs them that employees and patrons are required to be vaccinated. A covered entity may use the sign available online at the Key to NYC website, or use its own comparable sign.

Are Reasonable Accommodations Available for Employees Under the Key to NYC?

Employers may receive requests for accommodations from the vaccination mandate as a reasonable accommodation for disability, pregnancy, childbirth, lactation, religious beliefs or observances, or status as a victim of domestic violence, stalking, or sex offenses.  The guidance for reasonable accommodations applicable to covered entities under the Key to NYC differs significantly from the guidance for covered entities under the private-sector vaccination mandate.  In fact, the Key to NYC guidance specifically states, “masking and/or testing are not a sufficient alternative to vaccination and cannot be provided as a reasonable accommodation if the employee will still be in regular contact with other employees or customers.”5  Littler reported on this guidance when it was first issued.

Are there Reasonable Accommodations for Under the Key to NYC?

Given that the Key to NYC for indoor entertainment, recreation, dining and fitness establishments covers not only workers but anyone else who enters a covered premise, businesses also must consider reasonable accommodations for individuals who are not vaccinated due to a medical condition.  As the guidance issued on the Key to NYC notes, businesses are not required to make accommodations for patrons based on their religious beliefs.

If a customer of one of these establishments requests an exception to the vaccine requirement due to a medical condition, the business must engage with them in a cooperative dialogue to see if a reasonable accommodation is possible.  The guidance notes that reasonable accommodations can include permitting an unvaccinated customer to order by phone with a no-contact pickup or offering them virtual programming or classes.  Importantly, businesses do not have to provide any reasonable accommodation that would cause a direct threat to other customers or employees of the business, or to the requester, or otherwise impose an undue hardship on the business.  Under the guidance for the Key to NYC, unvaccinated patrons of a dining establishment may not be permitted to eat inside and can enter for a limited purpose only.  The guidance notes that other accommodations that are likely to pose a direct threat or create an undue burden include allowing an unvaccinated customer to participate in a group exercise class or in indoor, unmasked contact sports.

Other businesses that are open to the public also have an ongoing obligation to consider making reasonable accommodations for customers to ensure that they can access their business under Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.  Therefore, these businesses also will need to consider making reasonable accommodations for individuals who assert they cannot wear a mask to enter the business as required by the governor’s mask mandate.

New York City has clearly identified vaccination as the primary strategy for combating the COVID-19 pandemic and continues to enlist private businesses in an aggressive effort to stave off the restrictions and shutdowns that marked much of 2020.  Littler will continue to monitor and report on these developments.

See Footnotes

1 If a workplace is subject to a federal mandate that is not currently in effect (such as the presently enjoined OSHA ETS mandate) then the city’s mandate will cover the workplace.

2 Non-employee workers, such as contractors, must provide vaccination proof to their employers of record.  Businesses may request that the contractor’s employer confirm proof of vaccination, and the business then must keep a log of these requests and the confirmations they receive. Businesses can also choose to check the vaccination status of all workers directly upon entry to the workplace, which may be the only option for self-employed, contingent workers.

3 Employers may permit workers to continue coming into the workplace while their reasonable accommodation request is pending. However, city agencies may review a covered entity’s reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately.

4 The city also issued updated FAQs with regard to the Key to NYC on December 15, 2021.

5 NOTE: This guidance was removed by the city in December 2021.

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.