On December 6, 2021, Mayor Bill de Blasio announced that New York City would add new rules and requirements for COVID-19 vaccination, including a “universal” vaccine mandate affecting all private employers – around 184 000 entities doing business in the city. The mayor also announced changes to the city’s “Key to NYC” program, which requires patrons of most restaurants and entertainment venues to show proof of vaccination before entering an indoor facility. Very little has been officially released in writing so far, but we are closely monitoring these developments.
What we know so far
Vaccination mandate for private employers
A press release from the mayor says that a vaccination mandate for New York City private employers will take effect on December 27, 2021, by order of the New York City Commissioner of Health and Mental Hygiene ( “City health commissioner”). Details on the mandate, including advice on its application and implementation, will be provided on December 15, according to the town’s immunization information website and Mayor de Blasio’s remarks at a conference. release on December 6.
At that press conference, the mayor said the mandate would apply to any employee who works in person with at least one other person, but it would not apply to workers entirely remotely. He also said enforcement provisions are likely to include penalties for non-compliance, but the city is focusing on education and awareness.
New rules for the “Key to NYC”
The “Key to NYC” program was created by an emergency order of the mayor, issued on September 24, 2021. The program requires owners of indoor entertainment and recreation places, indoor establishments serving food and / or beverages, and indoor gymnasiums and fitness centers ensure that anyone 12 years of age or older has been vaccinated before entering enclosed spaces.
As of December 14, 2021, the Key to NYC rules will apply to all children aged 5 and over. As of December 27, 2021, however, anyone aged 5 or older seeking entry to covered facilities in the city must prove that they are fully vaccinated to meet New York Key requirements. Companies covered by the Key to NYC policy must continue to verify the immunization status of their customers before admitting them to an indoor space. The city has provided industry-specific guidance for operators of entertainment venues, fitness facilities and restaurants in more than a dozen languages to help business owners comply with Key to NYC rules , which also require companies to maintain written procedures.
Extension of vaccination rules for “high risk” student activities
On September 15, 2021, the municipal health commissioner issued an order requiring that students aged 12 or older who participate in certain “high-risk” activities be fully immunized as a prerequisite for their participation in such activities. In his announcement of December 6, 2021, the mayor extended this September ordinance to apply to all children aged 5 and over who participate in such activities as of December 14, 2021. The activities covered are generally those that involve increased exhalation, including most musical and theatrical activities. as well as sports and other team activities, such as cheerleading.
What remains unknown
New York City’s immunization mandate – the first to be released in any municipality (and the country) – will likely impact most private employers in New York City. While the mayor has publicly noted that enforcement action would likely include fines for non-compliance, it is not yet clear how employers will be required to demonstrate compliance. These details could be included in the next guidance, scheduled for release on December 15, just 12 days before the mandate comes into effect. Until the city provides further information, we can only speculate on the details including collecting proof of vaccination, testing options, handling reasonable accommodation, masking, etc.
Based on the types of guidance issued for the New York Key, the guidance is likely to meet documentation and reporting requirements, if any, and may include forms, “frequently asked questions”, notices, or required posters and / or compliance checklists. The guidelines should also address parameters for providing reasonable accommodation based on disability or genuine religious beliefs, as required by federal law.
It is also possible that the mayor’s power to unilaterally impose a vaccination mandate and to require private employers to apply such a mandate against individuals may be the subject of legal challenges. Such a lawsuit could seek a stay on the application of the warrant, similar to the suspensions imposed in many cases challenging various vaccine-related rules issued at the federal level under the Biden administration.
Finally, it should be noted that the date of entry into force of the city’s vaccination mandate of December 27, 2021 is a few days before the inauguration of a new mayor. The mayor-elect has not indicated whether or not he will continue the policies and strategies of the current administration.
What New York City Employers Should Do Now
While much remains unclear, employers can take the following steps now to ensure an easier compliance process:
- Determine if a vaccine requirement or similar policy makes sense for your business, whether or not it is mandated by a government entity. Many employers were already considering such policies in light of the Occupational Safety and Health Administration’s Temporary Emergency Standard for Vaccination and COVID-19 Testing, but have suspended their plans due to the nationwide stay. . As many health and safety protocols include relaxed requirements for face covering and social distancing when all parties present are fully vaccinated, proof of vaccination as a condition of employment might make sense in some settings.
- If your employees are represented by a union, don’t make any unilateral political decisions until you know more about the city’s vaccine mandate and the regulations or guidelines that go with it. The National Labor Relations Board has held that when an employer has “great flexibility and / or discretion in the implementation” of a legally prescribed vaccination policy, he is bound by a duty to negotiate and cannot act unilaterally by changing the conditions of employment. if his staff representative requests a negotiation on the subject.
- Consider alerting employees now to the potential legal requirement that they receive at least one dose of a COVID-19 vaccine by December 27, 2021. The holiday season is a busy time of year and , with many New Yorkers lining up for booster shots, the unvaccinated may not have difficulty finding a walk-in vaccination site or available appointments.
- Review the Reasonable Accommodation Guidelines if you have employees who may request it because of a medical or religious issue preventing them from complying with a vaccination requirement. In addition to federal requirements to consider accommodations for employees with disabilities or with a sincere religious belief, New York City human rights law requires employers to engage in cooperative dialogue with employees looking for reasonable accommodations.
- Be prepared to give employees time off with pay, both to get the vaccine and to recover from any side effects.
- Review collective agreements and other understandings and agreements with union representatives of employees to assess obligations that may exist once additional directives are issued.
- Stay tuned for more details from New York City on the vaccines mandate, which is due on December 15, 2021 (according to the city’s vaccine information website and the Mayor’s press conference of the December 6).