New York City employers finally have some clarity about whether the New York City private employer hard vaccine mandate will survive the transition from Mayor de Blasio to Mayor-Elect Eric Adams, and will be enforced under the new Administration. Late last week, on December 30th, Mayor-Elect Eric Adams announced that he will keep Mayor de Blasio’s private-sector vaccine mandate in place, which took effect earlier this week – on Monday, December 27th, but with a focus on compliance – not punishment. He also noted that the city will promptly analyze whether the mandate, along with other NYC vaccine requirements, will need to be updated to include obligatory booster doses in lieu of two vaccine shots, according to Adams’ winter coronavirus agenda passed out to reporters Thursday morning.
As outlined in our prior communication about the NYC mandate below (and in this blog article), beginning December 27, 2021, workers are required to provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.
A “Covered entity” means a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business. “Worker” means an individual who works in-person in New York City at a workplace, including full- or part-time staff members, employees, interns, volunteers or contractors of a covered entity, as well as a self-employed individual or a sole practitioner. Essentially, almost every private employer in New York City is subject to this mandate.
Amid concern among employers and a flurry of questions related to federal OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard, New York City also amended its current FAQs and Reasonable Accommodation guidance. Specifically, the reasonable accommodation guidance was revised to reflect that an accommodation may be made for pregnancy and for victims of domestic violence, sex offenses, or stalking, in addition to medical and religious reasons. The Guidance also clarifies that the examples for medical exemptions for vaccination were those that had been found worthy by the CDC and NYC Department of Health and Mental Hygiene. The guidance also revised the religious accommodation checklist concerning the types of information needed to support religious accommodation requests. Employers can use the guidance and checklists as a framework, but it is important to remember that each and every request must be analyzed on a case-by-case basis.
The FAQs were also revised to address whether employers covered by OSHA’s ETS were exempt from the City’s private employer vaccine mandate, and whether there are any industry-specific exemptions. NYC employers do not have the option of allowing a vaccine-or-testing choice for their workforce. At this time, the only unvaccinated employees who may continue working in New York City workplaces covered by the City mandate are those who have a pending request for or who have already been granted a reasonable accommodation. Finally, the Health Department clarified that there are no industry- or job-specific exemptions.
Prior to the holiday, several inspectors were patrolling regulated industries to inform them of the new rule, and noting that they would be back early in the New Year. Ultimately, this rule is subject to enforcement in short order, and it appears that the City is fully committed to ensuring that employers are complying with the mandate. As Mayor-Elect Adams indicated in his press conference, the goal is to ensure compliance and not to penalize employers. Given the short window of time employers were provided to comply with the mandate, it is likely that the City will exercise significant enforcement discretion in the months to come, but that does not mean employers should ignore the mandate’s requirements. Employers should promptly take steps to identify vaccinated and unvaccinated employees, provide employees information regarding how to request accommodations and the implications of the rule, and be prepared to demonstrate good faith efforts to come into compliance with the mandate.