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December 17, 2021

COVID-19 Workplace Vaccine Requirement: What Private Employers in New York City Need to Know


On Wednesday, December 15, 2021, New York City released guidelines, along with additional resources for employers, elaborating on the COVID-19 vaccine mandate previously announced on December 6 and applicable to all private sector New York City businesses.

Below are the key takeaways for New York City private employers.

Vaccine Mandate Requirements

  • By December 27, all New York City workers whose work is either in-person or involves public interaction must show their employer proof that they received at least one dose of a COVID-19 vaccine, unless the worker is exempt, as explained further below. Workers who receive a two-dose COVID-19 vaccine (Pfizer or Moderna) must show proof of receiving the second dose within 45 days after submitting proof of the first dose.
  • Acceptable proofs of vaccination are the same as those required for accessing indoor city spaces. Workers may show the below as proof:
    • CDC vaccination card, in digital or hard copy form;
    • NYC vaccination record or other official immunization record, in digital or hard copy form;
    • NYC COVID Safe App;
    • CLEAR Health Pass; or
    • Excelsior Pass.
  • Employers must also verify their workers’ proof of vaccination. The following are acceptable forms of identification, which may be in either digital or hard copy form:
    • Driver’s license;
    • Non-driver government ID card;
    • IDNYC card;
    • Passport; or
    • School or work ID card.
  • Employers may not permit any unvaccinated workers to work at their workplace, defined below, though unvaccinated workers may visit the workplace for a “quick and limited purpose” as described below. Additionally, if a worker fails to show proof of a second dose within the 45-day timeframe, the worker may not work at the workplace until the worker provides proof of receiving the second dose. An employer may decide whether to discipline or terminate the employment of unvaccinated workers or require such workers to work remotely.
  • Noncompliant businesses may face a fine of up to $1,000 and escalating penalties thereafter for subsequent violations.

What Businesses are Covered?

  • The mandate applies to all non-governmental entities that maintain or operate a workplace in New York City and employ more than one worker in New York City.
  • The City defines a “workplace” as “any location—including a vehicle—where [an individual] work[s] in the presence of at least one other person.”
  • If a business has multiple locations, each location is covered by the order.
  • This mandate does not apply to covered entities or individuals who are already subject to another mandate requiring proof of vaccination. However, this mandate does apply to covered entities or individuals who are subject to federal vaccine mandates that are not in effect as a result of a court order.

What “Workers” are Covered?

  • All “workers” must show proof of vaccination, unless granted a reasonable accommodation as described below. The city defines “workers” as “a full- or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered entity.”
  • A “worker” is not:
    • An individual who works alone and whose work does not involve in-person contact;
    • an individual who visits a workplace “for a quick and limited purpose,” such as using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment;
    • a non-NYC resident performing artist or college or professional athlete or individuals accompanying such individuals; or
    • a self-employed or sole proprietor (unless they work at a workplace, interact with other workers or their work involves public interaction).

Reasonable Accommodation Exemption

  • Workers who have a sincerely held religious (but not a social or political) belief or a medical condition that prevents them from receiving a vaccination may apply, by December 27, for a reasonable accommodation to be exempt from the vaccine mandate. Employers should engage in an interactive dialogue with workers who apply for such an exemption to determine if a reasonable accommodation is possible.
  • Employers may ask workers seeking reasonable accommodations due to a medical condition to provide a note from their medical provider; however, employers may not require workers who seek reasonable accommodations based on their religious beliefs to submit supporting documentation unless the employer has an objective reason to doubt the sincerity of the religious belief.
  • Employers may allow workers to come into the workplace while their request for a reasonable accommodation is pending.
  • Employers may deny reasonable accommodations that place an “undue burden” on the employer, which involves a multi-factor analysis, or that would “cause a direct threat to other employees or customers.” Factors to consider may include:
    • The nature and cost of the accommodation;
    • The overall financial resources, size, number of employees, and location of facilities of the employer; and
    • The type of operation, the structure of the workplace, and the impact of the accommodation on the employer’s operations.
  • City agencies may review an employer’s reasonable accommodation process and records to ensure that the employer handles such requests in an appropriate and timely manner.

Recordkeeping Requirements

  • By December 27, employers must verify and keep a record of each worker’s proof of vaccination. Employers may choose one of the following three methods to fulfill this requirement:
    • Retaining a copy of the worker’s proof of vaccination or, if the worker is exempt, a record of the reasonable accommodation with supporting documentation;
    • Creating a record for each worker that includes (i) the worker’s name; (ii) vaccination status; (iii) if the worker received a two-dose vaccine, the date by which they must submit proof of a second dose (within 45 days after providing proof of the first dose); and (iv) if applicable, a record of the worker’s reasonable accommodation with supporting documentation; or
    • Checking each worker’s proof of vaccination before the worker enters the workplace each day and keeping a record of each verification.
  • Employers are not required to maintain vaccination records for non-employee workers, such as contractors, but may instead request that the employer of the non-employee worker confirm proof of vaccination. The employers should then maintain proof of that request and confirmation in their records.
  • Business should be prepared to make their records available for inspection.

Posting Requirements

  • By December 27, employers must complete the “Affirmation of Compliance with Workplace Vaccination Requirements Certificate” and post the sign in a conspicuous place at the workplace. If a business has multiple locations, that business must post this sign at each location. Employers must post this specific sign even if they have their own signage about employee vaccination status. However, employers who already posted a notice pursuant to the “Key to NYC” requires for restaurants, fitness centers, and entertainment venues are not required to post this additional notice.

Additional Resources for Employers

Arnold & Porter will continue to monitor any new developments.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.