On December 13, 2021, New York City’s Commissioner of the New York City Department of Health and Mental Hygiene (DOHMH), Dr. Dave A. Chokshi, published an order (the Order) requiring private employers to impose COVID-19 vaccine mandates upon all in-person employees within New York City, with limited exceptions, as of December 27, 2021. DOHMH provided a series of FAQs and additional guidance on December 15, 2021. The Order follows Mayor Bill de Blasio’s December 6, 2021, announcement of this impending mandate.
Key points of the Order are as follows:
Beginning December 27, 2021, covered employers must publicly post an affirmation of compliance with the Order’s requirements, and they must not permit any employees from entering their workplace unless the employee provides proof of having received at least one dose of a COVID-19 vaccine. Proof of the second dose must come within 45 days (i.e., by February 10, 2022).
Limited exceptions to this requirement are described below. The Order is silent as to COVID-19 testing, as this would not satisfy the Order’s requirements.
“Covered entities” are those responsible for ensuring their employees are vaccinated in accordance with the Order. This includes entities that employ more than one worker within New York City or who maintain a workplace in New York City. This also includes self-employed individuals.
The Order extends to rideshare drivers as well as entities that operate coworking spaces which are responsible for ensuring proof of vaccination for individuals who rent a portion of the coworking space (though commercial landlords are not considered “covered entities” except with respect to their own employees).
All employees who perform work within New York City, and who come into contact with at least one other individual as part of that work (e.g., colleagues, customers, patrons, visitors, etc.), are covered by the Order’s requirements.
The Order does not apply to:
Employees who enter the employer’s workplace for only a “quick and limited” purpose (e.g., using the bathroom, making a delivery or punching in and then promptly departing);
Remote employees, or those who may come to an in-person workplace but do not come in contact with any colleagues, customers, clients, visitors or others during their work;
Employees who are entitled to reasonable accommodations (DOHMH published guidance for employers on accommodating workers under the Order); and
Workers who are not residents of New York City and who are performing artists, college/university or professional athletes, or individuals accompanying these workers, who are not obligated to provide proof of vaccination under the current Key to NYC mandates.
ENFORCEMENT AND PENALTIES
The Order will be enforced by New York City inspectors from various New York City agencies. Fines begin at $1,000 for noncompliance. However, the FAQs emphasize that the goal is to work with businesses to be compliant and “avoid fines and penalties.”
COORDINATION WITH STATE AND FEDERAL REQUIREMENTS
New York State Commissioner of Health Mary T. Bassett issued a statewide mask-or-vaccine mandate, effective December 13, 2021, requiring masks to be worn in all indoor public spaces unless the business or venue has implemented a vaccination requirement. (FAQs on the statewide vaccination-or-mask mandate can be found here.) Given the New York City “universal” employment-based vaccination mandate, employers and employees in New York City will be required to follow the vaccination mandate without a masking alternative, subject to the exceptions described above. The state’s mask-or-vaccine mandate is scheduled to last until January 15, 2022, when its necessity will be reassessed.
New York City Mayor-elect Eric Adams will be taking office on January 1, 2022, just five days after New York City begins to enforce this Order. Mayor-elect Adams has declined to comment publicly as to whether he plans to maintain this mandate once he assumes office. In the past, Mayor-elect Adams has publicly supported the state’s more moderate “vax-or-mask” requirement.