As you may be aware, on December 15, 2021, Mayor de Blasio mandated that all private-sector workers must receive at least one dose of a COVID-19 vaccine by December 27, 2021 and show proof of their second dose of the vaccine (if Pfizer or Moderna) within 45 days of their first dose. Importantly, this mandate applies to independent schools, just as it does to other private employers.
Independent schools in New York City should take steps to ensure that they comply with the mandate by December 20, 2021. Note: This deadline is seven days earlier than the deadline for other private businesses in New York City.
Are All Independent Schools Covered by the Mandate?
The mandate applies to all independent schools that provide instruction and related services to students from preschool through grade 12, or if they instruct students between the ages typically served from preschool through grade 12, even if the school does not separate students by their class year or by similar groupings.
The vaccination requirements apply to all independent school “staff,” which includes full-time and part-time employees and unpaid adult staff, such as student teachers, interns, and volunteers, who will be in the “workplace.” For ease of reading, we will refer to all who are required to be vaccinated under this mandate as “employees,” but be mindful that non-employees are also required to be vaccinated.
Of note, the mandate broadly defines “workplace” as any location, including a vehicle, where a person works in the presence of at least one other person. All employees must be vaccinated if they will be on school property for any period of time longer than a “quick or limited purpose.” A “quick and limited purpose” would include, for example, allowing the employee to use the restroom, receive an assignment before departing to perform work, or make a delivery. However, a “quick and limited purpose” would not include, for example, attending a faculty meeting or volunteering in a student’s classroom.
All independent school employees and unpaid adult staff must receive their first dose of a COVID-19 vaccine by December 20, 2021 and must receive and provide proof of their second dose within 45 days of submitting proof of their first dose. Independent schools would be wise to also ensure that any vendors providing services on campus are aware of and are in compliance with this mandate.
Any employee hired after December 20, 2021, must provide proof that they received at least one dose of a COVID-19 vaccine before their start date, and must provide proof of their second dose within 45 days of submitting proof of their first dose.
Do We Need to Consider Medical and Religious Exemptions?
Mirroring federal law, the New York City vaccine mandate requires independent schools to consider accommodations for employees who cannot receive the vaccine because of sincerely held religious beliefs or medical conditions. Employees must apply for a reasonable accommodation by December 20, 2021 and may continue working while their reasonable accommodation request is pending.
Schools would be wise to ensure that they carefully consider any accommodation requests made. For example, requests for medical accommodation should be accompanied by a doctor’s note. Employees seeking religious accommodations should not only be asked to describe the sincerely held nature of the religious belief at issue but should also explain, for example, whether they have received other vaccinations, how the COVID-19 vaccine is distinguishable from other vaccinations they have received, and/or if they otherwise use medications or medical treatment.
There are various ways in which independent schools can provide a reasonable accommodation. Schools could require the employee to undergo more frequent testing; assign the employee to work in areas where children are not present; or require the employee to wear two face coverings and maintain a distance of at least 6 feet from others in the school.
Can Employees Test in Lieu of Vaccination?
Unlike similar orders in other states that require employees to either be vaccinated or submit to weekly COVID-19 testing, this order does not permit employees to participate in weekly COVID-19 testing in lieu of receiving the vaccine, unless they have a medical or religious exemption. In other words, only those individuals who seek and are approved for a medical or religious exemption from vaccination may submit to weekly testing in lieu of vaccination. Employees who do not submit their vaccination records in a timely manner and are not otherwise exempt for religious or medical reasons must be excluded from school property.
Should We Keep Records of Our Employees’ Vaccination Status?
Yes! The mandate requires independent schools to keep records of the vaccination status of their school employees, and these records may be subject to inspection. All records should be stored securely to ensure the privacy and security of the employee’s information. Moreover, records should be accessible only by employees and other individuals who have a legitimate need to access the information, or who are permitted to access the information pursuant to a government order, law, or regulation.
Independent schools must maintain a record that reflects the following information:
- Name of the employee and their employment start date
- Type of proof of vaccination submitted (e.g., CDC vaccination card, NYC Safe App printout or screen shots, CLEAR Health Pass printout or screen shots, etc.)
- Type of vaccine received and dates when the vaccine doses were received. Note: Third doses and boosters do not currently need to be indicated
- Whether the employee is currently fully vaccinated
- For any employee who was granted a reasonable accommodation, the record must indicate that such accommodation was provided. Additionally, the school must separately maintain records stating the basis for granting the accommodation and include supporting documents that the employee provided in support of the reasonable accommodation
What Happens If an Independent School Is Not in Compliance?
Under the mandate, employers must exclude any employee from the school who does not comply with the vaccination requirement and does not have a documented medical or religious exemption. Like other private businesses, independent schools that do not comply could be subject to a fine of $1,000.00 and to escalating penalties if the violation continues.
Are There Any Other Requirements?
Independent schools must submit an initial form affirming that they are in compliance with the vaccination mandate. The initial form must be submitted by December 28, 2021 and can be found here. Independent schools must also submit a final form affirming that they are in compliance with the vaccination mandate by February 17, 2022. The final affirmation form can be found here.
Independent schools with questions about the New York COVID-19 Vaccination Mandate are encouraged to contact Caryn Pass, Grace Lee, Janice Gregerson, or Ashley Sykes for assistance.
The authors are grateful for the contributions of Imani Menard, a law clerk in Venable LLP's District of Columbia office.