Client Alert 
December 21, 2021

Per our previous Client Alert, effective December 27, 2021, the “Key to NYC” program will now require all individuals over the age of 12 to provide proof that they have received a full regimen of a COVID-19 vaccine (meaning two doses of a two-dose vaccine, such as Pfizer or Moderna, or one dose of a single-dose vaccine, such as Janssen/Johnson & Johnson). In addition, effective December 14, children 5-11 years old are now required to provide proof of at least one dose of a COVID-19 vaccine.

The City has now updated its FAQs  that address the changes to the Key to NYC program. The primary changes are detailed below.

New Recordkeeping Requirements

Until now, the Key to NYC program did not require employers to maintain records of proof of vaccination submitted by its workers, including employees and contractors.

However, the City is now aligning the Key to NYC program with the requirements of the NYC private employer vaccination mandate that also takes effect December 27, 2021, and effective December 27, 2021, Key to NYC businesses will need to do one of the following:

  • Maintain a copy of each worker’s proof of vaccination by either taking a picture or making a copy of their proof of vaccination;
  • Create a paper or electronic record that includes the following information for each worker: (a) the worker’s name; (b) whether the worker is fully vaccinated; and (c) 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); or
  • Check the workers’ proof of vaccination before they enter the workplace each day and maintain a record of each verification.

As an alternative with respect to contractors, businesses can instead request that a contractor’s employer confirm proof of vaccination, and then keep a log of the confirmations they receive.

If a Key to NYC business is not already in compliance with one of the above practices, the business should take steps to prepare for compliance as of December 27, 2021. This may include asking workers to again show their proof of vaccination so that the covered business can make a copy of the worker’s proof of vaccination or update a paper or electronic record, or so that the business can verify that the worker obtained their second dose by December 27, 2021.

Any vaccination information or documentation should be collected and stored in a secure manner, and must only be accessible by employees or other individuals who have a legitimate need to access such information.

Additionally, if any worker is not vaccinated because a business granted them a reasonable accommodation, the business must keep a record of when the business granted the reasonable accommodation, the basis for doing so, and any supporting documents the worker provided for the reasonable accommodation.

Updates Regarding Customer Proof of Vaccination

Key to NYC businesses are not required to maintain records of customers who have provided proof of vaccination. The City also clarified that customers must provide the following proof of vaccination as of the dates set out below:

  • Customers ages 12 and up: 
  • Until December 26, 2021 must provide proof that they have received one-dose of a COVID-19 vaccine.
  • Beginning December 27, 2021, must provide proof that they received a full regimen of a COVID-19 vaccine.
  • Customers ages 5-12:
  • Until January 28, 2022 must provide proof that they have received one-dose of a COVID-19 vaccine.
  • Beginning January 29, 2022 must provide proof that they have received a full regimen of a COVID-19 vaccine.
  • Customers who do not turn 5 until after December 13, 2021:
  • Must provide proof they have received a full regimen of a COVID-19 vaccine within 45 days after their 5th birthday.

Posting Requirement

The requirement that Key to NYC businesses place the "Vaccination Required Poster for Business in a place that is clearly visible to people before they enter the business remains in effect. No other posting is required.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.

This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.