As mentioned beforehand (right here and right here), starting on December 27, 2021, any employees in New York City who “perform in-person work or interact with the public in the course of business” should present proof to their employers that they’ve obtained a minimum of one dose of a COVID-19 vaccine. Workers will then have 45 days (till February 10, 2022) to present proof of their second dose (for two-dose vaccines, with one J&J dose being full vaccination). After December 27, employers could not enable any unvaccinated employees to come to their office.
As promised, New York City at the moment launched Guidance (an outline web page with hyperlinks which will be discovered right here) detailing the necessities associated to this COVID-19 vaccine mandate for personal employees. The paperwork inside these hyperlinks most densely filled with related info are the Order from the Commissioner of Health and Mental Hygiene (right here) and FAQs for Covered Entities (right here). Below is a abstract of probably the most important info confirmed within the Guidance.
Who/What is Covered?
First, there have to be a lined “worker,” that means “an individual who works in-person in New York City at a workplace,” Order p. 5, with “workplace” outlined as “any place where work is performed [in New York City] in the presence of another worker, or a member of the public.” FAQs p. 3. As a outcome, “[i]ndividuals who are self-employed or sole proprietors” are lined if, and provided that, in New York City, “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.” FAQs p. 3 “Worker does not include: (i) an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public; [or] (ii) an individual who enters the workplace for a quick and limited purpose ….” Order p. 5. The FAQs state that unvaccinated employees could enter the office “for a quick and limited purpose.” The examples supplied by the City for entry into the office by unvaccinated employees are “using the bathroom, making a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment.” FAQs p. 2.
If there’s a “worker” lined by the mandate, the subsequent query is who’s accountable for imposing and documenting the mandate. Any non-governmental employer of “more than one worker in New York City is subject to the vaccination mandate, ” as “is any non-governmental entity that maintains or operates a workplace in New York City.” FAQs p. 3. The 5 examples of lined entities supplied within the FAQs are a clothes retailer, a grocery shops, a taxicab or rideshare owner-operator equivalent to a rideshare driver, a speech therapist who visits purchasers of their properties, and a author who rents a desk in a shared workspace. FAQs p. 3.
Where an entity and employee reside or are primarily based does not matter. What issues is whether or not the work is carried out within the presence of one other employee or member of the general public in New York City. FAQs p. 5.
Verification of Vaccination Status
Under the NYC vaccine mandate and steerage, employers should confirm and preserve a report of every worker’s proof of vaccination by December 27. The Order (at p. 3) gives three choices for how companies can meet this requirement:
- An worker’s report generally is a copy of their proof of vaccination or a report of an affordable lodging with supporting documentation.
- Businesses can create their very own paper or digital report that features the next info for every worker: (a) the worker’s title, (b) whether or not the worker is totally vaccinated, (c) for workers who submitted proof of the primary dose of a two-dose vaccine, the date by which they’ll present proof of a second dose (no later than 45 days after submitting proof of the primary dose), and (d) a report of cheap lodging with supporting documentation, if relevant.
- Businesses could verify every worker’s proof of vaccination earlier than they enter the office every day and should preserve a report of every verification.
Although the Order (at p.5) reserves the correct of the Commissioner to specify “[a]ny other method … to demonstrate proof of vaccination,” acceptance of self-attestations of vaccination from employees is not at the moment specified within the steerage.
An entity who has a contractor go to its New York City office can both verify the proof of vaccination of the contractor on every go to or as a substitute request that the contractor’s employer verify the contractor is vaccinated, whereas needing to preserve a log of those requests and the confirmations obtained if the latter possibility is chosen. FAQs p.5.
Affirmation of Compliance
Also by December 27, all employers may have to full this affirmation certificates and submit it in a “public place” within the workspace to present that they’re in compliance. Employers also needs to be ready to make these data out there for inspection. The steerage confirms that any enterprise that posted a discover in compliance with the Key to NYC program doesn’t have to submit this extra discover.
As such, and opposite to earlier reviews, employers will not want to submit proof of vaccination or compliance to the City Department of Health and Mental Health so as to adjust to this mandate.
Reasonable Accommodations
Workers who assert that their faith or a medical situation prevents them from getting vaccinated should request an affordable lodging from the vaccine mandate by December 27, 2021 or else be excluded from in-person work. FAQs p. 6. If the request for an affordable lodging request is made by December 27, the employee is permitted to proceed working within the office whereas their lodging request is underneath assessment. While the Order and FAQs are silent on circumstances that have to be imposed on the employee throughout this assessment interval, as a result of the Guidance for Public Accommodations on Equitable Implementation of COVID-19 Vaccine Requirements (“Accommodations Guidance” right here) gives the instance of “show[ing] proof of a recent negative COVID-19 test and wear[ing] a face covering while on the premises” for example of an affordable lodging, doing so in the course of the assessment interval ought to suffice. Accommodations Guidance No. 2. Indeed, the NYC COVID-19 hotline confirmed for the authors of this alert that, if a employee appropriately requests a vaccine lodging, that employee could enter the office in the course of the assessment interval as long as they put on a masks.
Businesses will want to preserve report of any granted cheap lodging, which is able to want to embrace 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.” FAQs p. 2. The City “may review a covered entity’s reasonable accommodation process and records to ensure the entity is handling requests promptly and appropriately.” FAQs p. 6. Notably, the Accommodations Guidance consists of “checklists” for Accommodation for Medical and Religious Reasons, respectively, that time in the direction of considerably slim determinations of when such lodging have to be granted; and the FAQs (at p. 6) state that, “[i]f an employer chooses to follow this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.”
Penalties and Enforcement
Employers should retain data of their workers’ vaccination standing, as described above. These data needs to be made out there for inspection by “[i]nspectors from various City agencies,” who will start imposing the vaccine mandate on December 27, 2021. FAQs p. 6.
Penalties for noncompliance begin at $1,000, and might escalate for repeat offenders. FAQs p. 7. The FAQs make it clear that companies will want to take a number of steps to accumulate and report vaccination, in addition to submit the above attestation info to be in compliance.
In the occasion that an employer or particular person suspects somebody is attempting to present a pretend proof of vaccination, it or they’ll — however are usually not required to — do any of the next: (1) name 311 or file a grievance on-line, (2) name 833-VAX-SCAM (833-829-7226), or (3) e-mail STOPVAXFRAUD@well being.ny.gov. Guidance, Report a Fake Record.
Next Steps for Employers
To adjust to this mandate, employers ought to start getting ready a vaccination coverage if they don’t have already got one in place. They also needs to put together a technique to confirm and report their workers’ vaccination standing and requests for cheap lodging by December 27, 2021. In addition, employers ought to be sure to full and submit the required affirmation by December 27.
Seyfarth attorneys can be found to present steerage and help companies to adjust to this mandate.