December 27, 2021 brought a shift in vaccination requirements for New Yorkers.[i]  Businesses and employees should be aware of their new obligations.  More employees are now required to be vaccinated.  Employees in eligible positions must take specific steps, and businesses are required to demonstrate their employees have taken such steps.  Businesses who do business with independent contractors should also be aware of special requirements.

Employees

First Dose of COVID-19 Vaccine

Moving forward, according to the Order, workers who perform in-person work or interact with the public in the course of business will be required to show proof they received at least one does of the COVID-19 vaccine, and businesses employing workers in a public-facing position must demonstrate compliance as well.[ii]  These workers must have received at least one dose of either the Moderna, Pfizer, or Johnson & Johnson COVID-19 vaccine.

Second Dose of COVID-19 Vaccine

If workers receive either the Moderna or Pfizer COVID-19 vaccine, they will have 45 days to show proof of their second dose.[iii]  Workers can verify compliance through their NYC vaccination record, CDC card, or by downloading available apps that can confirm vaccination status.[iv]

Employers

Text of the Order

These requirements come from an order released by the commissioner on December 13, 2021.[v]  The text of the order, in relevant part, states employers must:

a. maintain a copy of each worker’s proof of vaccination and, if applicable, a record of reasonable accommodation(s) as described in (b)(iv); OR

b. maintain a record of such proof of vaccination, provided that such record shall include:

i. the worker’s name; and

ii. whether the person is fully vaccinated; and

iii. for a worker who submits 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 proof of first dose was submitted; and

iv. for a worker who does not submit proof of COVID-19 vaccination because of a reasonable accommodation, the record must indicate that such accommodation was provided, and the covered entity must separately maintain records stating the basis for such accommodation and any supporting documentation provided by such worker;

OR

c. check the proof of vaccination before allowing a worker to enter the workplace and maintain a record of the verification.[vi]

Keep Unvaccinated Workers Out of the Workplace

Accordingly, as workers must be vaccinated, businesses have an obligation to ensure unvaccinated workers are not in the workplace.[vii]  NYC Health elaborated, stating that a workplace is any location – including a vehicle – where you work in the presence of at least one other person.[viii]  Businesses should be aware, then, that their employees who work in vehicles are not exempted from this requirement.

Certify Compliance Publicly

Starting on December 27^th, businesses must display a certificate that demonstrates compliance with this new requirement.[ix]  This certificate should be posted publicly on the premises.

Contractors

Employers may be wondering about their obligations if they employ contractors.  According to the FAQ for the Order, requirements are slightly different for employers who work with contractors who would otherwise be subject to these rules based on their workplace.[x]  Accordingly, businesses with contract workers need not keep records on whether or not contractors are vaccinated.  These businesses can instead send a request to the contractor’s employer.  Then, the contractor’s employer should confirm the contractor has been vaccinated.  Businesses must keep records showing they requested the vaccination status and they received confirmation of vaccination status.[xi]

Takeaway

As COVID-19 is an evolving situation given the rise of the Omicron variant, employers should stay apprised of the litany of legal changes, current and future.  Because of the pandemic, these legal changes can occur quickly, leaving employers with little time to take steps to ensure compliance.  Because the COVID-19 situation is dynamic, employers should consult with counsel for updated industry-specific guidance and the latest developments.

[i] Vaccination Requirement: Workplaces, NY Health, (n.d.), https://www1.nyc.gov/site/doh/covid/covid-19-vaccine-workplace-requirement.page.

[ii] Id.

[iii] Id.

[iv] Vaccination Requirement: Indoor Public Activities (Key to NYC), NY Health, (n.d.), https://www1.nyc.gov/site/doh/covid/covid-19-vaccines-keytonyc.page#vaxproof.

[v] ORDER OF THE COMMISSIONER OF HEALTH AND MENTAL HYGIENE TO REQUIRE COVID-19 VACCINATION IN THE WORKPLACE, NY Health, (Dec. 13, 2021), https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-workplace-requirement.pdf.

[vi] Id.

[vii] Vaccination Requirement: Workplaces, supra note i.

[viii] Id.

[ix] Vaccination Requirement: Workplaces, supra note i.

[x] FREQUENTLY ASKED QUESTIONS FOR COVERED ENTITIES ORDER OF THE COMMISSIONER OF HEALTH AND MENTAL HYGIENE TO REQUIRE COVID-19 VACCINATION IN THE WORKPLACE, NY HEALTH, (Dec. 15, 2021), https://www1.nyc.gov/assets/counseltothemayor/downloads/Workplace-FAQ.pdf.

[xi] Id.

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