On December 6, 2021, New York City unveiled plans that will require all on-site employees of private businesses located in the city, from salons to multinational corporations, to get the COVID-19 vaccine. This first-in-the-nation vaccine mandate for private employers is intended to limit the spread of the new Omicron variant this winter.
As discussed below, this mandate is set to take effect on December 27, 2021, just days before current Mayor Bill de Blasio leaves office. The rationale for this mandate is to tackle an ongoing rise in COVID-19 cases due to the cold weather and the rise of the Omicron variant.
What are the specific requirements that will go into effect on December 27th?
Every private business, regardless of size, must require employees to have at least one dose of a COVID-19 vaccine on or before December 27, 2021 in order to be present in a city work location. Additional details will be provided through guidance expected to be released by the city on December 15, 2021. Additionally, all children ages 5 through 11 must show proof of at least one vaccination dose in order to access covered venues, such as indoor dining, gyms and entertainment and event venues throughout the city. Individuals ages 12 and older will be required to show at least two vaccination doses, instead of one, except for the Johnson & Johnson vaccine, in order to access indoor venues.
Are Employees permitted to wear a mask as an alternative to the mandate?
Based on the mayor’s announcement, unlike the currently-stayed OSHA Emergency Temporary Standard, employers may not permit employees to wear a mask as an alternative to vaccination.
Can Employees seek an exemption from this new mandate?
Unlikely. While the guidance on this new mandate is not yet published, it will likely follow the current guidance for employers covered by the Key to NYC Pass.
https://www1.nyc.gov/assets/counseltothemayor/downloads/Key-to-NYC-FAQ.pdf
According to that guidance, “masking and/or testing are not a sufficient alternative to vaccination and cannot be provided as a reasonable accommodation if the employee will still be in regular contact with other employees or customers.” If the new mandate follows the same guidance as the Key to NYC Pass, unvaccinated employees would not be permitted to return to the office. As such, businesses would have to consider various accommodations available to such employees, including remote work or placing the employee on an unpaid leave of absence, so long as such accommodations do not pose an undue burden on the company.
In any event, we will update this instruction once the city publishes its forthcoming guidance.
What should Employers do next?
It is possible that this new mandate will be challenged in court, as other mandates have been throughout the country. Although the Second Circuit Court of Appeals recently upheld New York’s mandate for healthcare workers, we cannot predict how a New York court would respond to challenges to this mandate.
For now, New York City businesses should assume that the mandate will take effect on December 27. Therefore, were recommend the following: (1) promptly notify your workforce of this new directive so that unvaccinated employees have adequate time to schedule their vaccinations before the December 27th deadline; (2) gather proof of vaccination from already vaccinated employees and store same in the Company’s employee medical record database; (3) review your policies and procedures to ensure any requests for accommodations will be handled according to such policies and applicable law; and (4) prepare to publish internal policies about the vaccination mandate, and the process for employees to submit an accommodation request.
Further information or guidance concerning this mandate can be obtained from OlenderFeldman LLP. Please contact Howard Matalon () or Alex Umansky () in the Employment Practices and Employment Litigation group.
