Client Alert 
December 15, 2021

Per our previous Client Alert, earlier this month New York City announced that all private sector employees working in New York City must provide their employer with proof that they received at least one dose of an approved COVID-19 vaccine by December 27, 2021 in order to continue reporting to their workplace (the “NYC Private Employer Mandate”).
The City has just released guidance regarding the requirements of the NYC Private Employer Mandate, and has also published FAQs for businesses. The requirements of the NYC Private Employer Mandate are detailed below.
Worker Vaccination Requirement

All private sector workers who perform in-person work or interact with the public in the course of business in New York City must provide their employer with proof that they have received at least one dose of a COVID-19 vaccine no later than December 27, 2021. Within 45 days thereafter, workers must show proof of their second dose, if they obtained a two-dose vaccine. Along with proof of vaccination, workers must also present matching identification.
Workers who do not provide proof of vaccination – either of one dose by December 27, 2021 or of the second dose of a two-dose vaccine within 45 days thereafter – must be excluded from the workplace except for quick and limited purposes, absent a need for a reasonable accommodation (discussed further below).
The following individuals are not covered by the NYC Private Employer Mandate:

  • People who work alone — at home or otherwise — and do not have in-person contact with co-workers or others in the course of their business;
  • An individual who enters the workplace for a quick and limited purpose; and
  • A non-NYC resident who is a performing artist, college or professional athlete, or individuals accompanying such performing artist or athlete who do not have to display proof of vaccination pursuant to the Key to NYC program.
Acceptable Forms of Proof of Vaccination/Identification
Proof of vaccination may be demonstrated by displaying a photo or hard copy of a CDC vaccination card (including in the NYC COVID Safe App), the NYS Excelsior Pass/Excelsior Pass Plus, CLEAR Digital Vaccine Card, CLEAR Health Pass, or official vaccine record, or a photo or hard copy of an official vaccination record of a AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm or Sinovac vaccine administered outside the United States.
Acceptable forms of identification include a driver’s license, non-driver government ID card, IDNYC card, passport or school or work ID card.
Employers Must Keep a Record of Vaccination Status
Businesses must verify and keep a record of each worker's proof of vaccination by doing one of the following:
  • Maintain a copy of each worker's proof of vaccination or a record of providing a reasonable accommodation with supporting documentation;
  • Create a paper or electronic record that includes the following information for each worker: (a) worker's name; (b) whether the worker is fully vaccinated; (c) for workers who submitted proof of the first dose of a two-dose vaccine, the date by which they can provide proof of a second dose (no later than 45 days after submitting proof of the first dose); and (d) record of reasonable accommodation with supporting documentation, as applicable; or
  • Check the worker's proof of vaccination before they enter the workplace each day and maintain a record of each verification.
Businesses should be prepared to make their records available for inspection by the City, and to explain their procedures for complying with the NYC Private Employer Mandate to government inspectors.
Reasonable Accommodations
The NYC Private Employer Mandate allows employers to make reasonable accommodations for medical or religious reasons only, and unlike businesses covered by the Key to NYC program, does not require that the worker be completely removed from the workplace. Per the City’s Guidance on Accommodations for Workers under the NYC Private Employer Mandate, the following may constitute reasonable accommodations depending on the circumstances:

  • Weekly PCR testing for COVID-19 and masking at all times when not eating or drinking, with any eating or drinking occurring at least six feet away from others.
  • Telework or remote work that does not expose others to the accommodated worker.
  • Leave of Absence.
If a worker is granted a reasonable accommodation, the business must record the basis for the accommodation and keep the documentation supporting the need for accommodation.
Contractors Also Covered
The NYC Private Employer Mandate also applies to contractors visiting an employer’s workplace but who are employed by another company. However, instead of checking each contractor’s proof of vaccination directly, businesses may request that a contractor’s employer confirm proof of vaccination, and then keep a log of the confirmations they receive.
Posting of Certificate of Compliance
By December 27, 2021, businesses must complete this certificate affirming they are in compliance with the NYC Private Employer Mandate and post it in a conspicuous place, unless the business is subject to the Key to NYC (e.g., restaurants, fitness centers, and entertainment venues) and has already posted a notice per the Key to NYC requirements.
Interaction with NYS Mask Mandate for Businesses Without a Fully-Vaccinated Workplace
As explained in our previous Client Alert, masks are now required to be worn in all indoor places other than a private residence statewide, unless the business requires all individuals (including employees, patrons, contractors, etc.) to provide proof of full vaccination in order to enter. As a reminder, at present, “fully vaccinated” means that at least 2 weeks have passed since the second dose of a two-dose COVID-19 vaccine (e.g., Pfizer, Moderna) or the dose of a one-dose COVID-19 vaccine (e.g., J&J).
Therefore, if a business has any partially vaccinated employees/contractors in the workplace, such as because the individual has not yet received their second dose of a 2-dose vaccine or because a reasonable accommodation was granted allowing for weekly testing and masking, all individuals over the age of 2, regardless of vaccination status, must wear a mask unless the individual is actively eating or drinking or alone in an enclosed room.
Accordingly, at present, allowing an unvaccinated employee to report to work with additional precautions may be considered an undue hardship and therefore not a reasonable accommodation.
Interaction with Key to NYC Program
Businesses and individuals that are covered by the Key to NYC program are not covered by the NYC Private Employer Mandate, and should instead follow the requirements of the Key to NYC program, as amended. Please refer to our previous Client Alert on the revised requirements of the Key to NYC program for more information. 

Other Exceptions

Businesses and individuals covered by another federal, state or local order that is in effect and requires them to maintain or provide proof of full vaccination, such as the New York State vaccine mandate for healthcare workers, are not covered by the NYC Private Employer Mandate.

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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.