As we previously reported, 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. Since then, the Mayor has signed an executive order and issued additional FAQ guidance that provides important context and answers for employers.
Below are answers to some key questions for New York City employers in the affected industries. As the City prepares to enforce this policy, we will continue to update this alert as necessary.
To which employers does the Key to NYC Pass apply?
The NYC Pass program applies to all entities that operate any indoor entertainment and recreational settings, indoor food services, or indoor gyms and fitness settings.
What constitutes indoor entertainment and recreational settings under the executive order?
Indoor entertainment and recreational settings include movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums and galleries, aquariums, zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers. These settings are covered regardless of the actual activity taking place at the location.
What constitutes indoor food services under the executive order?
Indoor food services include indoor portions of food service establishments offering food and drink, including all indoor dining areas of food service establishments that receive letter grades as under the Health Code; businesses operating indoor seating areas of food courts; catering food service establishments that provide food indoors on their premises; and any indoor portions of food service establishments that are regulated by the New York State Department of Agriculture and Markets that offer food for on-premises indoor consumption. The executive order expressly omits establishments that serve food or drink exclusively for outdoor consumption, as well as charitable food services such as soup kitchens.
What constitutes indoor gyms and fitness settings under the executive order?
Indoor gyms and fitness settings include indoor portions of standalone and hotel gyms and fitness centers, gyms and fitness centers in higher education institutions, yoga/Pilates/barre/dance studios, boxing/kickboxing gyms, fitness boot camps, indoor pools, CrossFit or other plyometric boxes, and other facilities used for conducting group fitness classes.
What if only some, but not all, of an organization's operations qualify as indoor entertainment and recreational settings, indoor food services, or indoor gyms and fitness settings?
For employers that have covered and non-covered portions within their premises, proof of vaccination will be required only for the covered portions. For example, a grocery store that has an indoor seated eating area is required to check proof of vaccination only for that area.
To which individuals does the Key to NYC Pass apply?
Customers and employees seeking to enter any of the above covered premises will need to show proof of vaccination in order to enter. Customers will not need to show proof of vaccination to patronize outdoor facilities. Additionally, the policy applies only to individuals aged 12 and older. The mandate also applies to all contractors who reside in New York City. Expressly omitted from the policy are "individuals entering for a quick and limited purpose." The order gives examples such as using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs. Employers should use their judgment to determine whether such quick and limited purposes might exist at their covered premises.
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. For answers to frequently asked questions about the dos and don'ts of vaccine exemptions for employees under federal law, see our prior client alert available here. In addition to requirements under federal law, the New York City Commission on Human Rights has released a FAQ guidance sheet on required exemptions under this mandate. For employees who are not vaccinated for reasons related to a disability, pregnancy, a religious belief, or their status as a victim of domestic violence, stalking, or sex offenses, employers are obligated to engage in a good-faith discussion about reasonable accommodations. The guidance lists remote work, outdoors work, or work in an area separate from other employees and customers as reasonable accommodations. Importantly, employers do not need to provide such accommodations if doing so would cause a significant risk of substantial harm to employees or customers, or if it would otherwise impose an undue hardship on the business.
For patrons who are unable to show proof of vaccination because of a disability, the FAQ guidance indicates that employers should engage in a good-faith discussion to see if there is a reasonable accommodation that can be made. Employers should not ask for proof of an alleged disability from patrons and are not required to provide reasonable accommodations to patrons who are unvaccinated for reasons other than a disability.
What do affected employers need to do?
The policy requires that employers confirm proof of at least one dose of vaccination for all patrons, employees, and resident contractors. For individuals who appear to be over the age of 18, employers must check identification to ensure that it matches the name on the proof of vaccination. Notably, employers are not required to verify that the proof of vaccination is real. Additionally, employers must post a sign outside of the covered premises indicating that proof of vaccination is required to enter. Covered entities may use a sign provided by the Department of Health and Mental Hygiene, or their own compliant sign. That Department of Health and Mental Hygiene sign is available here. Although employers do not need to keep documentation of the vaccination status of every patron and employee, the mandate does require that employers keep written records describing their protocols for implementing and enforcing the policy. Businesses may choose to keep records of people who have provided proof of vaccination to avoid daily vaccination checks. Employers should also ensure that they are educated on required exemptions and should consider training their staff on how to address non-exempt customers who are refusing to comply with the mandate.
How will the City enforce this policy, what constitutes a violation of the policy, and what are the penalties for such violations?
Under the executive order, each instance of a failure to check vaccination status is considered a separate violation. In his announcement, the Mayor implied that enforcement would occur mainly through inspections. A first violation carries a fine of no less than $1,000. A second violation, if it occurs within twelve months of the first, increases the fine to no less than $2,000. Each subsequent violation that occurs within twelve months of the first violation is subject to a fine of no less than $5,000.
When does the policy go into effect?
The mandate went into effect on Tuesday, August 17, 2021. However, the section that penalizes entities for non-compliance does not become effective until September 13, 2021. Until then, we anticipate that the City will continue to release guidance answering more complex questions as they arise during this non-enforcement period.
What forms of proof will be accepted?
Under the policy, vaccination cards are appropriate proof. This includes records from the CDC or any other immunization record from the jurisdiction where the vaccine was administered. Notably, patrons and employees may provide either the record or a physical or digital photo of the record.
Additionally, valid digital passes 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.
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.