Beginning December 27, 2021, all workers in New York City who perform in-person work or interact with the public in the course of business 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). If an employee is not fully vaccinated, the individual must submit the date by which proof of the second dose will be provided.
Businesses must verify and keep a record of each worker’s proof of vaccination by December 27. There are three options for how businesses can meet this requirement:
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.
By December 27, 2021, businesses must complete the below certificate affirming they are in compliance with this requirement and post it in a public place. The Affirmation of Compliance can be found here.
The City has provided “Frequently Asked Questions and Answers” to provide guidance to assist employers covered by the order to better understand their responsibilities. Some of the pertinent questions and answers are as follows:
Q. What are businesses required to do?
A. By December 27, 2021, workers must provide or have provided proof of vaccination against COVID-19 to their employers, and a business must exclude from the workplace any worker who has not provided such proof, unless an exception due to a religious or medical accommodation applies, or a worker only ever enters the workplace for a quick and limited purpose.
Q. Do I need to keep a record of each worker’s proof of vaccination?
A. It is easiest and most efficient to keep a record of each worker’s proof of vaccination. You can do so by either: 1) making a copy or taking a picture of their proof of vaccination, or 2) creating your own paper or electronic record that includes the following information for each worker:
If you hire a contract worker, you do not need to keep a record of the contractor’s vaccination status. You can instead request that the contractor’s employer confirm that the contractor is vaccinated, and you must maintain a record of both your request and the confirmation.
Q. Do I need to keep a record of any reasonable accommodations?
A. Yes, if any of your workers do not get vaccinated because you approved a reasonable accommodation for them based on their religion or medical condition, you will need to have a record of when you granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation.
Q. If a worker only submits proof of one dose of a two-dose vaccine by December 27th, do I need to make sure they get their second dose?
A. The requirement for December 27th is proof of ONE DOSE. Workers need to get their second dose within 45 days. If they do not have proof of a second dose within that timeframe, you must exclude them from the workplace until they can display proof of vaccination for their second dose.
Q. Can an unvaccinated worker enter the workplace for any reason?
A. Yes, workers may enter for a quick and limited purpose even if they have not shown the required proof of vaccination. Some examples of a quick and limited purpose include: using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.
Q. Are there any other requirements?
A. The Department of Health and Mental Hygiene (DOHMH) has created a one-page attestation sign that you must fill out and post in a conspicuous location at your business by December 27, 2021 (see above). The attestation sign affirms that you are complying with the order. You must post this official attestation sign even if you previously had your own signage about employee vaccination status. If you previously posted a notice per the “Key to NYC” requirements for restaurants, fitness centers, and entertainment venues, you do not need to post the additional DOHMH attestation sign.
Q. Which businesses are covered by the order?
A. First, the order only applies to workplaces in New York City. Many different types of businesses are covered by the order. Any non-governmental entity that employs more than one worker in New York City is covered. So is any non-governmental entity that maintains or operates a workplace in New York City. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public. Individuals who are self-employed or sole proprietors are not covered by the order unless they work at a workplace, or interact with other workers in-person, or interact with the public in-person in the course of their work.
Some examples of covered entities are:
The order does not apply to covered entities or individuals who are already subject to another Order of the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that requires them to maintain or provide proof of full vaccination, or to individuals who have been granted a reasonable accommodation pursuant to such requirement. Covered entities or individuals who are subject to federal requirements that are not currently in effect because of a court order must comply with this order.
Q. What if I am self-employed or a sole proprietor?
A. Individuals who are self-employed or sole proprietors are not covered unless they work at a workplace, interact with other workers, or interact with the public in the course of their work. If they are covered by the order, then they have the same obligations as a covered business, and must post the official DOHMH attestation sign confirming their compliance with the order in a conspicuous location in their workplace. If they do not have a fixed workplace or their workplace is a vehicle, they may keep their own proof of vaccination with them at all times in lieu of posting the attestation sign.
Q. What if my business is one of multiple locations, such as a chain restaurant?
A. Each individual business location is covered by the order, and must post the official DOHMH attestation sign in a conspicuous location that affirms the business is in compliance with the order. However, a business with multiple locations may store employee vaccination records in one central location, as well as reasonable accommodation records, if any, instead of having such records available at each location. Each business location should have contact information available to offer to City inspectors to put them in touch with the business representative who is centrally storing such records for the business.
Q. Do I need to verify proof of vaccination for workers who do not live in New York City?
A. Yes, the requirement is specific to New York City workplaces, and where the worker lives is not relevant to the order.
Q. Do I need to check proof of vaccination for contractors visiting my workplace who are employed by another company?
A. Yes, but if you wish to avoid checking each contract worker individually, you can instead request that the contractor’s employer confirm that the contractor is vaccinated. However, you do need to keep a record of your request, and the contractor’s employer’s confirmation that the contractor is vaccinated.
Q. How do I verify my workers’ proof of vaccination?
A. You should ask to view one of the types of proof of vaccination below, and a form of identification. Acceptable forms of identification include:
Individuals may also show copies of their identification document, including a picture on their phone or by using an app like NYC COVID Safe that allows them to display a copy of the document.
Q. What types of proof of vaccination are sufficient?
A. Sufficient proof may be demonstrated by displaying:
Q. How should I handle the documents I need to maintain?
A. Any vaccination information should be collected and stored in a secure manner to ensure the privacy and security of the information is protected. Such information should only be accessed by employees or other individuals who have a legitimate need to access such information for purposes of compliance with this order, or other governmental orders, laws, or regulations. Vaccination information should not be used for any other purpose.
Q. What if a worker refuses to show proof of vaccination?
If a worker is in the workplace for more than a quick and limited purpose, and has not applied for a reasonable accommodation, then you must not allow them to enter the workplace.
Q. What if a worker says their religion or a medical condition prevents them from getting vaccinated?
A. Workers who have a sincerely held religious belief (not a social or political belief), or a medical condition that prevents them from being vaccinated may apply for a reasonable accommodation. They must apply for a reasonable accommodation by December 27, 2021.
Q. Do I need to fire or discipline employees who refuse to comply with the order?
A. 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.
What Should Employers Do Now?
We recommend that employers review the full set of Frequently Asked Questions, which can be found here. New York City employers should implement mandatory vaccine policies for their workplace now, if they have not already done so. In addition, businesses should be prepared to make their records available for inspection. Businesses must also be sure to complete the Affirmation of Compliance affirming they are in compliance with the requirements and post it in a public place. If you need assistance preparing for the new mandate, please contact ALG.
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This material is for informational purposes only and is not intended to constitute legal advice.
