A “First-in-the-Nation” Vaccine Mandate – NYC’s Guidance on the Private Employer Vaccine Mandate
On December 15, 2021, New York City released highly anticipated guidance and a helpful FAQ regarding compliance with Mayor Bill de Blasio’s private sector “first-in-the-nation” vaccine mandate. The new directive requires all private-sector employees to have received at least one dose of a COVID-19 vaccine by December 27. Workers will then have 45 days to show proof of their second dose. The ground-breaking mandate was developed in response to growing concerns about the COVID-19 Omicron variant and the upcoming holidays. In New York City, the positivity rate doubled in three days, according to Dr. Jay Varma, a senior public health adviser to Mayor Bill de Blasio. “We’ve never seen this before in #NYC,” he wrote on Twitter. He noted that the only explanation is Omicron’s ability to evade both natural and vaccine-induced immunity.
The City’s guidance addresses enforcement, reasonable accommodations, and additional resources to support small businesses with implementation. Importantly, it has been made clear that businesses may not allow unvaccinated workers into their “workplace,” defined as any location — including a vehicle — where someone works in the presence of at least one other person. The workplace requirement has multiple exceptions including, but not limited to, those who: (i) work alone (at home or otherwise) and do not have in-person contact with anyone in the course of their employment, (ii) only enter a workplace briefly for a limited purpose (such as using the bathroom), or (iii) have been granted a reasonable accommodation for medical or religious reasons. For those who have been granted a reasonable accommodation, it is paramount that employers record the basis for the accommodation and retain any supporting documentation. The City has provided multiple resources to help workers, employers, and public accommodations comply.
Businesses should be vigilant in all record keeping related to COVID-19 vaccinations. Under the new mandate, businesses are required to verify and keep a record of each worker’s proof of vaccination by December 27. The City laid out three options for businesses to meet this requirement: (i) maintaining a copy of an employee’s proof of vaccination or a record of a reasonable accommodation with supporting documentation; (ii) creating a paper or electronic record including pertinent information for each worker such as their name, vaccination status, and the date by which an employee will receive their second dose; or (iii) checking each employee’s proof of vaccination before they enter work every day and keeping a log of each verification. All vaccination-related records must be kept confidential and stored separately from personnel files. Additionally, by December 27 each business must complete a certificate affirming compliance with these requirements and post it in a public place.
The mandate is Mayor de Blasio’s preemptive action to protect the City’s economy from potential business restrictions or shutdowns, asserting that “vaccination is the central weapon” against COVID-19. As such, inspectors from various City agencies will begin enforcing the order and inspecting for compliance regardless of which agency they hail from. While the City emphasizes it is their preference to avoid fines and penalties, if a business refuses to comply, they are subject to a $1,000 fine and escalating penalties thereafter, if violations persist.
The City’s Corporation Counsel is publicly stating they are very confident the mandate will withstand any legal challenges. That said, politicians and attorneys have already threatened legal action, including a potential class-action suit for anyone who works in the City who does not want to get vaccinated. The timing of the directive is also concerning, as Mayor de Blasio undertook this action just three weeks before the end of his time in office. Mayor-elect Eric Adams, scheduled to take office on January 1, 2022, has indicated he will be evaluating the mandate when he takes office and, as a spokesperson noted, he will “make determinations based on science, efficacy and the advice of health professionals.”
While the ultimate fate of the mandate may be uncertain, New York City employers should move forward assuming the mandate will take effect on December 27 and comply with its requirements. As always, Obermayer’s Labor and Employment attorneys are prepared to answer any questions you may have regarding this expansive vaccine mandate.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.