New York City Issues Guidance on Mandatory Vaccination in the Workplace

Written by Stefanie Toren
Today, New York City issued extensive guidance on the Commissioner of Health and Mental Hygiene’s December 13, 2021 Order that requires vaccination of employees in the workplace. Links to the December 13, 2021 Order and NYC’s guidance concerning the Order are below:
As set forth in the December 13, 2021 Order, as of December 27, 2021, all workers in NYC who perform in-person work or interact with the public in the course of business must show proof that they have received at least one (1) dose of a COVID-19 vaccine. For those workers who have not completed their two-shot series for the Pfizer or Moderna vaccines by December 27, 2021, they will have 45 days to show proof of their second dose. A “workplace” is considered any location in NYC where a person works in the presence of at least one other person. If a worker fails to show proof of vaccination by December 27, 2021, an employer is prohibited from allowing the unvaccinated worker to come to their workplace.
Under the guidance, employers are required to verify and maintain a record of each worker’s proof of vaccination by December 27, 2021 to comply with the Order. Employers can either: (i) retain a copy of the worker’s proof of vaccination; or (ii) create their own record containing the worker’s name and whether the worker is vaccinated. Employers also have the option of reviewing a worker’s proof of vaccination before they enter the workplace each day but they must also keep a record of each verification.
The guidance confirms that the mandatory vaccination requirement does not apply to workers who work alone and do not have in-person contact with co-workers or others in the course of their business, such as those working remotely. The requirement also does not apply to people who enter the workplace for a brief, limited purpose, such as to use the restroom or retrieve a file. 
The guidance confirms that employers must consider worker requests for reasonable accommodations from the mandatory vaccination requirement for medical or religious reasons. After engaging in the cooperative dialogue with the worker, the employer may grant a worker’s reasonable accommodation or deny the accommodation if it would be an undue burden on the employer or the worker would impose a direct threat to themselves or others. NYC has confirmed that in addition to allowing remote work and leaves of absence as accommodations, employers can allow workers with approved accommodation requests to work in the workplace while wearing a mask at all times (except while eating and drinking), provided that they also undergo weekly COVID-19 testing. Employers must maintain records concerning any request for accommodation, including the worker’s supporting documentation and the employer’s decision.
Finally, by December 27, 2021, the employer must complete a certificate which affirms that the employer is in compliance with the Order. Once completed, the certificate must be posted in a conspicuous place at the workplace. A link to the certificate is below:
Please contact a Clifton Budd & DeMaria, LLP attorney if you have any questions.
About the Author
Stefanie Toren
Stefanie R. Toren is a Partner at Clifton Budd & DeMaria, where she has worked since 2006. Ms. Toren’s practice focuses on...
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