Making Sense of the Current State of Vaccine Mandates

Each day seems to bring new developments with respect to COVID-19 regulations at the federal, state and local levels. We focus in this alert on New York City’s recent Order and related guidance regarding its new private employer COVID-19 vaccine mandate, but first note an important development with respect to the Occupational Safety and Health Act COVID-19 Emergency Temporary Standard (ETS) that was the subject of a previous alert.

The Changing Status of Federal Mandates

On Dec. 17, 2021, the Sixth Circuit Court of Appeals issued a decision dissolving the Fifth Circuit’s stay of the ETS, which requires employers with 100 or more employees to implement a mandatory COVID-19 vaccination policy or adopt a policy permitting its unvaccinated employees to undergo weekly testing. As a result, OSHA is no longer prohibited from moving forward with or enforcing the ETS.

In light of the decision, OSHA announced on its website that “[t]o account for any uncertainty created by the stay,” it “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9 so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Originally, employers had to comply with most requirements of the ETS by Dec. 6, 2021, and the testing requirement for unvaccinated employees on Jan. 4, 2022. This brief extension provides employers with a bit more time to comply with the ETS.

However, the ETS remains on uncertain ground, as the Sixth Circuit’s decision already has been appealed to the U.S. Supreme Court on an emergency basis and OSHA is due to file on Dec. 30, 2021, its response to applications to stay enforcement of the ETS. In the meantime, employers are advised to prepare for compliance with the ETS. Our previous alert provides guidance on how employers can prepare for compliance while bearing in mind, as discussed below, the requirements of state and local laws.

Meanwhile, also on Dec. 17, 2021, the Eleventh Circuit Court of Appeals denied the government’s request to lift a nationwide order preliminarily enjoining the enforcement of Executive Order 14042, which effectively required all covered employees of federal contractors to be fully vaccinated by Dec. 8, 2021 (later extended to Jan. 4, 2022) unless they were legally entitled to an accommodation.

New York City Mandate

Last week, New York City issued a broad Order, set to take effect on Dec. 27, 2021, mandating that private sector businesses in New York City implement vaccine mandates. Employers must take immediate steps to comply with this Order, even though the intentions of the administration of incoming Mayor Eric Adams — who takes office on Jan. 1, 2022 — with respect to this new mandate remain unclear.

Covered Businesses and Workers

Beginning Dec. 27, 2021, all private sector businesses employing more than one worker in New York City or maintaining a workplace in New York City (a Covered Entity) must require workers to provide “proof of vaccination” (as defined in the Order) before entering the workplace. In practice, this means that by Dec. 27, all workers entering the workplace must have at minimum received the first dose of a two-dose vaccine (with a requirement that they show proof of a second dose within 45 days), received a single-dose vaccine or have applied for a reasonable accommodation. With limited exceptions, to the extent a worker has not provided such proof, the Covered Entity must exclude that worker from the workplace. Critically — and contrary to the OSHA ETS — the New York City Order does not permit testing in lieu of vaccination.

A “workplace” is defined as anywhere work is performed in the presence of another worker or a member of the public. Workers include full- and part-time staff members, employers, employees, interns, volunteers and contractors of a Covered Entity, as well as self-employed individuals or sole practitioners who work at a workplace or interact with workers or the public in the course of their business.

The mandate does not apply to individuals who (i) work from their own home and whose employment does not involve interacting in person with co-workers or members of the public; (ii) enter the workplace for a quick and limited purpose (as described below); or (iii) are non-City residents who are performing artists, college or professional athletes, or individuals accompanying such performing artists or college or professional athletes.

Reasonable Accommodations and Other Exceptions

Workers may seek an exemption to the vaccine mandate based on medical or religious reasons. The Covered Entity should maintain a record of whether the reasonable accommodation was granted, when the determination was made, the basis for the determination and copies of any supporting documents provided by the worker to support the request for accommodation.

As noted above, workers seeking a reasonable accommodation must apply for one by Dec. 27, 2021. According to New York City’s Frequently Asked Questions for Covered Entities, Covered Entities may permit workers to continue coming into the workplace while their reasonable accommodation request is pending provided that the entity is handling requests promptly and appropriately.

As noted above, the Order does not generally permit testing as an alternative to vaccination. However, the city’s Guidance states that a reasonable accommodation for religious or medical reasons may include submission to regular testing for COVID-19 infection as well as wearing personal protective equipment, changing workstations or work schedules to avoid close contact with co-workers or customers and/or a leave of absence.

Another exception to the vaccine requirement applies to workers entering the workplace for a quick and limited purpose. Some examples of a quick and limited purpose include using the bathroom, making a delivery or clocking in and receiving an assignment before leaving to begin a solitary assignment. These workers should be required to wear face masks in the workplace at all times.

Proof of Vaccination, Verification and Record-Keeping Requirements

A Covered Entity is required to receive “proof of vaccination” from its workers under the Order. For purposes of the compliance with the Order, “proof of vaccination” requires a Covered Entity to obtain verification documentation demonstrating that an individual has (i) been fully vaccinated against COVID-19; (ii) received one dose of a single-dose COVID-19 vaccine; or (iii) received the first dose of a two-dose COVID-19 vaccine, provided that a worker providing proof of only the first dose must provide proof of receiving the second dose of that vaccine within 45 days after receiving the first dose. Note, the “proof of vaccination” under the Order does NOT require employees to be fully vaccinated at the outset of the regulation, and in this regard is different from the requirements of the OSHA ETS.

Covered Entities may comply with their verification and record-keeping requirements by doing one of the following:

• Obtain and keep a copy of each worker’s proof of vaccination or, if applicable, a record of reasonable accommodation(s);
  
  
• Maintain a paper or electronic record of proof with (a) the worker’s name, (b) whether the worker is fully vaccinated, (c) for a worker who submits proof of the first dose of a two-dose vaccine, the date by which proof of the second dose must be provided or (d) a record of reasonable accommodation with supporting documentation; or
  
  
• Check vaccination status before allowing workers to enter the workplace and maintain a record of the verification.

Verification of vaccination should be established by viewing a form of identification and one of the following acceptable forms of proof:

• A CDC COVID-19 Vaccination Record Card or other official immunization record or a digital photo or photocopy of such record;
  
  
• New York City COVID Safe App showing a vaccination record;
  
  
• New York State Excelsior Pass/Excelsior Pass Plus;
  
  
• CLEAR Digital Vaccine Card or Health Pass; or
  
  
• Any other method specified by the commissioner as sufficient to demonstrate proof of vaccination.

Covered Entities are required to confidentially maintain records showing proof of vaccination and regarding reasonable accommodations.

For a non-employee worker, such as a contractor, a Covered Entity may request that the worker’s employer confirm the proof of vaccination in lieu of maintaining the above records. A Covered Entity must maintain a record of such request and confirmation.

Covered Entities that already have the records required by the Order are not required to obtain the information again.

Affirmation Form

No later than Dec. 27, 2021, Covered Entities must complete a Form provided by the Department of Health affirming compliance with the requirements of the Order and post the affirmation in a conspicuous location at the workplace.

Penalties

Covered Entities refusing to comply with the Order are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

Dealing with Overlapping Federal, State and City Mandates

By its terms, the Order does not apply to Covered Entities or individuals that already are subject to another Order of the commissioner of the New York City Department of Health, the Board of Health, the mayor of New York City, or a state or federal entity that is in effect and requires them to maintain or provide proof of full vaccination as well as to individuals who have been granted a reasonable accommodation pursuant to such other governmental mandate.

New York City businesses also must comply with New York’s statewide mask-or-vaccine requirement, issued by New York State’s Department of Health. Effective Dec. 13, 2021, through Jan. 15, 2022 (unless otherwise extended), all persons over age 2 and able to medically tolerate a mask, regardless of vaccination status, must wear an appropriate mask while in any indoor public place, except where the “indoor public space,” such as an office, requires proof of vaccination as a condition of entry. The mandate defines “indoor public place” as “any indoor space that is not a private residence.”

Stated differently, New York State’s mask requirement does not apply to any indoor public area that requires proof of vaccination as a condition of entry for all individuals. According to the state’s guidance, however, if the office does not require proof of vaccination as a condition of entry, everyone present must wear masks at all times regardless of vaccination status except when eating, drinking or alone in an enclosed room.

Note that there will be a period of time from Dec. 27, 2021, to Feb. 10, 2022, when an employee who has only received one dose of a two-dose vaccine at a workplace covered by the ETS could fulfill the “proof of vaccination” requirement under New York City law, but their presence would require everyone to wear masks, as they are not fully vaccinated as defined in the state law, such that the mask mandate would apply.

Key Takeaways

New York City Workplaces: As a general rule, all workers entering the workplace must be vaccinated unless they have been granted a reasonable accommodation. If the reasonable accommodation allows an unvaccinated worker into the workplace, then all workers must wear masks.

Workplaces in New York State but Outside New York City: As a general rule, employers may decide between requiring having all people vaccinated in order to enter the workplace OR allowing in people who are unvaccinated, so long as they wear a face covering. Employers subject to the ETS may ask workers to provide weekly proof of a negative test in lieu of receiving a vaccine, but all workers will be required to be masked.

Workplaces Outside New York State: Employers need to confirm the law in the particular jurisdiction, as some states will not permit a vaccine mandate that does not have a testing option. Such laws must be read together with the OSHA ETS (if applicable) to determine what policies are permissible.

All Workplaces: As always, employers are advised to update their policies and procedures to comply with the new mandates while maintaining a watchful eye on legal challenges and other developments. 

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The legal landscape surrounding vaccination and testing mandates is changing rapidly. Please contact a member of Kramer Levin’s Employment Law department with any questions or concerns about the topics raised in this alert.