What Do Mandatory COVID-19 Requirements Mean for NYC Employers?

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As of December 27, 2021, New York City will require all private-sector employers to mandate COVID-19 vaccinations for their workers. These steps were taken to help prevent a spike in cases of COVID-19 over the holidays, as well as to reduce the common spread of such viruses in the colder months. 

This comes after Supreme Court Justice Sonia Sotomayor declined to block New York City’s vaccination directive against COVID-19 for all city Department of Education employees back in October 2021. Here we explain what the mandatory COVID-19 requirements mean for you as a NYC employer.

All Private Employers are Considered “Covered Entities”

First, it is important to realize the order which refers to “covered entities” affects all private employers. It defines covered entities as:

• Any private entity that employs more than one worker or maintains a workplace in New York City and
• Any self-employed individual or sole practitioner working within a workplace or interacting with other workers or the public while conducting their business

While the definition is broad, keep in mind it also includes:

• Not-for-profit organizations
• Non-government agencies
• Religious institutions

Therefore there really is no way around the requirements.

Who is a Worker and What is a Workplace?

Two more important definitions related to the order include:

• The worker: This includes anyone working in-person in New York City at their workplace both full and part-time, paid or unpaid, independently or as an employee 
• The workplace: This is any site even a vehicle, where workers are present and interacting with co-workers or the public

In other words, anyone working whether they are paid or unpaid, and any site where the worker interacts with others.

Exclusions for the Order

Anyone who works from home and/or who does not interact with people outside their household is excluded. It also does not apply to the following:

• Those who enter the workplace “for a quick and limited purpose”
• Non-New York City residents such as performing artists, athletes, or individuals accompanying such performing artists or athletes not required to provide proof of vaccination according to NYC rules

You can refer to Guidance Documents updated on December 15, 2021, to get a better understanding of the exclusions.

Unionized Workers and Workplace

When it comes to unionized workplaces, as an employer you do not have latitude in following the mandate unless you are handling individual requests for workers seeking reasonable accommodations. This means employers don’t have flexibility or the option to use their discretion in implementing the mandate. 

If you are seeking latitude, you face a bargaining process for existing terms and conditions of employment based on the most recent guidelines the General Counsel of the National Labor Relations Board produced. However, you also face obligations to bargain when requests for accommodations are made or when the status of those who apply for accommodations but did not receive them are involved.

Key Deadlines for the Mandate

All employers have until December 27th to ensure workers either:

• Provide proof of having at least their first dose or
• Have requested a reasonable accommodation due to a disability or religious belief

You must implement the requirement for all workers, interns, volunteers, temporary workers, and contracted/freelance workers entering your workplace. As well, the new mandate does not allow you to offer a test option instead of being vaccinated. If you have unvaccinated workers or volunteers without accommodations, they must be excluded from working at any of your sites as of December 27, 2021.

What is Required Proof of COVID-19 Vaccination?

All employees, contract/freelance workers, interns, and volunteers must provide proof of vaccine by showing one of the following:

• CDC vaccine card
• Excelsior Pass
• Excelsior Pass Plus
• NYC vaccine record
• NYC COVID Safe app
• CLEAR Health Pass

One of the above must indicate each worker is either fully vaccinated or that they have a second dose booked within 45 days of their first dose.

Employer Records

As an employer you must retain records showing compliance including the proof of vaccination provided by each employee, contract/freelance worker, intern, or volunteer in the following manner:

• A copy showing the proof of vaccination
• If applicable a separate confidential medical file for those with disabilities

Each record must include the worker’s name, vaccination status (i.e. fully or first dose), or proof of the appointment for second doses within 45 days after the first dose. For those with a reasonable accommodation, documentation must be kept proving either religious or medical reasons for their accommodation. You also have to continue to review proof of vaccination each day any person enters the workplace.

If you already reviewed and logged employees’ proof of vaccination you won’t have to do so again. However, you will need to collect proof of vaccination from each new hire. You also don’t have to check proof of vaccination of individual contractors who have third-party employers, as it will be up to their direct employer to do so. You should ask the contractors’ employers for confirmation of proof of vaccination, however.

With the new mandate, you should consider the convenience and security of implementing an HR management system and employee database to help manage records.