On August 3, 2021, New York City (NYC or the City) Mayor Bill de Blasio announced that employees and customers of indoor dining, indoor fitness, and indoor entertainment and performance establishments must provide proof of at least one vaccination before entering the premises. The program, dubbed the "Key to NYC Pass," is the first of its kind in the United States and comes amid rising COVID-19 infections due to the Delta variant of the virus. Based on the rollout of this program, it is possible – and some pundits would even say likely – that other jurisdictions will follow suit.
Below are answers to some key questions for New York City employers in the affected industries. In the Mayor's announcement, he stated that the final details of the policy will be available during the next several weeks. As the City releases more information, we will update this client alert.
To which employers does the Key to NYC Pass apply?
The Key to NYC Pass program applies to indoor dining, indoor fitness, and indoor entertainment and performance establishments. At this point, it is too early to speculate how broadly the City will choose to define these categories. For example, employers that have a dining component to their business, such as hotels, may need to implement different policies for each segment of their business. The same goes for private clubs that may offer fitness facilities to their members.
To which individuals does the Key to NYC Pass apply?
Customers and employees of indoor dining, indoor fitness, and indoor entertainment and performance establishments will need to show proof of vaccination in order to enter the indoor premises. Customers will not need to show proof of vaccination to patronize outdoor facilities.
For service providers other than employees, the applicability of the Key to NYC Pass is less clear. The Mayor's statement does not expressly reference other types of service providers, such as independent contractors who enter a business's premises. We anticipate that the City's forthcoming written guidance will address this issue. For now, given the stated intent of the Mayor's initiative, covered businesses should assume that independent contractors who enter their premises will need to comply with the City's vaccination mandate.
What do affected employers need to do?
The policy requires employers to confirm proof of at least one dose of vaccination for all customers and employees and other service providers. In his announcement, the Mayor mentioned that the policy will be enforced through inspection. Employers should plan on creating a record of its covered employees' proofs of vaccination. It is unclear at this stage whether businesses will need to create a record of proof for all customers, although that is unlikely at this time. According to a recent media appearance by the Mayor, confirming proof of a customer's vaccination will be similar to confirming a customer's date of birth for purchasing alcohol or reviewing a customer's ticket for entrance to a theater.
Will businesses need to provide exemptions to employees and customers?
As we previously wrote here, under federal law, employers must permit vaccine exemptions for qualifying medical conditions and sincerely held religious beliefs that prevent vaccination. The Mayor's announcement does not expressly reference these exemptions, although we anticipate that the City's forthcoming written guidance will require such exemptions for employees and customers. If they have not done so already, businesses in the affected industries should implement policies and procedures for receiving and evaluating requests for exemptions from the City's vaccine mandate. For answers to frequently asked questions about the dos and don'ts of vaccine exemptions, see our prior client alert, available here.
When does the policy go into effect?
The Mayor announced that the policy will be finalized, posted, and implemented during the week of August 16. Until then, the City is continuing to review and edit the policy, based on feedback from government officials, business owners, and other community members. From August 16 through September 13, we expect that the City will release detailed guidance answering more complex questions. The policy will be enforced through inspections beginning on September 13, which coincides with the start of the city school year and an expected ramp-up of employers returning to offices.
What forms of proof will be accepted?
Under the policy, vaccination cards from the CDC or a valid digital pass from either New York State's or New York City's vaccination applications will be accepted. New York State's Excelsior Pass application is accessible only to individuals who received their vaccine within the state, while New York City's newly released "NYC COVID Safe" application allows for people to upload vaccination cards issued from any state.
Will businesses be required to provide remote work, if possible, to accommodate employees who do not qualify for a medical or religious exemption?
At this point, it is unclear whether employers will be required to provide remote work to employees who do not wish to be vaccinated and are able to perform their primary job duties remotely. We anticipate that the City will release further guidance covering these situations in the coming weeks. In the meantime, employers should begin to confidentially ask employees about their vaccination status to get a better sense of changes that may need to be made.
Do employers need to provide unvaccinated employees with paid time off to receive the vaccine?
Yes. Under New York Labor Law Section 196-C, employees must provide up to four hours of paid leave per vaccine injection.
We will continue to monitor developments related to the Key to NYC Pass. If your organization has any questions about mandatory vaccination policies, please feel free to contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.