New York City Department of Health and Mental Hygiene Commissioner Dr. Dave A. Chokshi has issued an order requiring most New York City private sector employees to be vaccinated.

The order was issued Dec. 13, 2021, but released to the public on Dec. 15, 2021, one day after Mayor Bill de Blasio issued a new executive order expanding the Key to NYC mandatory vaccination requirements for indoor dining, gyms, and entertainment venues.

Dr. Chokshi’s order was accompanied by a list of answers to Frequently Asked Questions and a flyer that provides business owners with additional information.

Vaccination Mandate

First, the order does not apply to employers who are already subject to an existing vaccination order issued by the Department of Health and Mental Hygiene (the Department), the City’s Board of Health or the Mayor. Thus, if you are an employer covered by the Key to NYC, this order does not apply to you. Instead, you can view the most recent update to the Key to NYC here.

Beginning Dec. 27, 2021, any non-government entity that employs more than one worker in the City or maintains a workplace in the City must ensure that all of its “workers” provide proof that they are vaccinated against COVID-19 before entering the workplace.

The order defines “worker” as an individual who works in person in the City, including full- or part-time staff members, employers, employees, interns, volunteers or contractors of a covered entity. The order also covers self-employed individuals or sole practitioners who work at a public workplace or interact with other workers or the public in the course of their business.

Notably, employees who are not required to show proof of vaccination under the order include:

• An individual who works from their own home and whose employment does not involve interacting in person with coworkers or members of the public
• An individual who enters the workplace for “a quick and limited purpose”
• Non-City residents who are performing artists, college or professional athletes, or individuals accompanying such performing artists or college or professional athletes that are not required to show proof of vaccination pursuant to the City’s Key to NYC program.

Proof of Vaccination

Per the order, a worker must, by Dec. 27, 2021, show proof that they:

• Have been “fully vaccinated,” meaning that two weeks have elapsed since they received a one-dose vaccine (such as Johnson & Johnson) or the second dose of a two-dose vaccine (such as Pfizer or Moderna)
• Received one dose of a single-dose vaccine (even if two weeks have not elapsed)

OR

• Received the first dose of a two-dose vaccine

If a worker has only received the first dose of a two-dose vaccine, then they are required to also show proof that they received the second dose within 45 days of receiving the first dose. And, if a worker fails to show proof of any form of vaccination prior to Dec. 27, 2021, then the employer must exclude that individual from the workplace.

Proof of vaccination can be shown through the following methods:

• A Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Record card (or other acceptable record from the jurisdiction, city, state or country where the vaccine was administered) or a digital copy or photocopy of such record
• The New York City COVID-19 Safe App showing a vaccination record
• A valid New York State Excelsior Pass/Excelsior Pass Plus
• CLEAR Health Pass

OR

• “Any other method specified by the Commissioner as sufficient to demonstrate proof of vaccination”

Whether the Commissioner will add “any other method” of proof of vaccination remains to be seen.

Verification

Employers have an option as to how they will verify that a worker is properly vaccinated. Specifically, an employer may:

• Maintain a copy of each worker’s proof of vaccination

OR

• Maintain a record of each worker’s proof of vaccination that contains (i) the worker’s name; (ii) whether the worker is fully vaccinated; and (iii) if the worker shows proof of the first dose of a two-dose vaccine, the date by which proof of the second dose must be provided (which must be no later than 45 days after the first dose)

OR

• Check the worker’s proof of vaccination every time a worker enters the workplace, and maintain a log of each instance

For a non-employee worker (such as a contractor), an entity may request that the worker’s employer confirm the proof of vaccination in lieu of maintaining the above records.

Whatever option an employer chooses, it is obligated to keep such records confidential, and such records may be inspected by the City at any time upon request.

Additionally, employers will be required to declare on this form that they are in compliance with this order, and post it in visible place.

Reasonable Accommodations

Despite these requirements, the order specifically notes that an employer must still engage in the interactive process (also known as the “cooperative dialogue”) with a worker who requests to be exempt from vaccination as a reasonable accommodation due to a medical condition or a sincerely held religious belief, so long it does not cause undue hardship on the employer.

If an employer allows a worker to be exempt from vaccination as a reasonable accommodation, the worker must request the accommodation before December 27. Further, the employer must keep records demonstrating that such accommodation was requested, any documents provided by the worker in support of the request, documents showing the employer’s response and documents evidencing the accommodation that was provided, if any. All of these records must be kept in a separate file. The City has issued specific accommodation request forms that employers should use when employees request a reasonable accommodation. These forms can be found on the City’s website here.

For a more in-depth discussion of reasonable accommodations with respect to the COVID-19 vaccination, please see our Aug. 18, 2021 alert and our Sept. 2, 2021 alert.

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