The City of New York Set To Become First In Nation To Impose COVID-19 Vaccine Mandate on Private Employers 

On December 6, 2021, New York City Mayor Bill de Blasio announced a new COVID-19 vaccine mandate for all private sector employers that employ more than one employee in New York City. On December 15, 2021, the New York City Commissioner of Health and Mental Hygiene has published the Order mandating vaccination. In tandem, the City has also released an FAQ.

The order can be found here and the FAQ can be found here.

By December 27, 2021, covered employers must receive proof that all covered employees entering the workplace have received at least the first dose of a two-dose vaccine and must exclude employees from the workplace who have not provided such proof. Here are some of the major factors related to the mandate:

Which Employers are Covered by the Order?

Covered employers include:

  • Any non-governmental employer who employs more than one worker in NYC or maintains a workplace in NYC
    • Workplace is defined as any location, including a vehicle, where work is being performed in the presence of another worker or member of the public (i.e., taxicabs or rideshare owner-operators such as Uber drivers).
  • Any self-employed individual or sole practitioner who works at a workplace or interacts with workers or the public in the course of their business (i.e., WeWork or similar shared workspaces).

How do Employers Comply With the Order?

  • Covered employers must verify employees' proof of vaccination and maintain a record of such proof of vaccination.
  • For workers who submit at least the first dose of a two-dose vaccine series by December 27, 2021, the employer must seek and receive proof of the second dose no later than 45 days after proof of the first dose.
  • Employers can confirm an employee's vaccination status by receipt and review of an employee's CDC Vaccination Card, NYC COVID Safe App, NY State Excelsior Pass, NY State Excelsior Pass Plus, or CLEAR Health Pass.
  • For non-employee workers, such as a contractor, a covered employer may request that the contractor's employer confirm proof of vaccination.
  • By December 27, 2021, employers will be required to complete an affirmation of compliance and post the affirmation in a conspicuous location.

Who is Not Covered By the Order?

  • Employees who work from their home and whose work does not involve in-person interaction with co-workers or members of the public;
  • An individual who enters the workplace for a quick and limited purpose and;
  • Employers and employees are already subject to another Order of the Commissioner, Board of Health, Mayor, or a state or federal entity requiring proof of full vaccination.

Reasonable Accommodation Requests

Pursuant to the mandate, employees have the right to seek accommodation for medical and religious reasons. Accordingly, employees may be entitled to an accommodation exempting them from vaccination pursuant to relevant federal, state, and city laws. For employers considering such accommodations, they must:

  • Instruct employees that such requests must be submitted by December 27, 2021.
  • Maintain records documenting that the accommodation was provided.
  • Separately maintain records stating the basis for the accommodation and any supporting documentation provided by the employee.
  • Employers should promptly handle any requests submitted as the City may review an employer's process and records.

How Will the Order Be Enforced?

Inspectors from various City agencies will begin to enforce the Order on December 27, 2021. 

  • Employers must make records available for inspection upon request. 
  • Employers in violation of the Order are subject to fines starting at $1,000.
  • Violations will be prosecuted by the Office of Administrative Trials and Hearings (OATH).

Next Steps and Takeaways

  • All covered employers should consider taking the following steps in advance of December 27, 2021:
    • ​Develop a mandatory vaccine policy. Employers who have already implemented a mandatory vaccine policy should be prepared to review and revise as necessary to comply with the City's mandate.
    • Develop a process for requesting and gathering proof of vaccination from employees.
    • Develop procedures to handle medical and religious exemption requests.
  • National employers who may also be subject to OSHA's Emergency Temporary Standard ("ETS"), CMS's Vaccine Mandate, and the Federal Contractor Vaccine Mandate should note that although pending legal challenges have prevented the implementation of these vaccine mandates, they should be prepared to comply with New York City's mandate if they employ individuals in New York City.
  • We anticipate that there will be legal challenges to this impending mandate. We will monitor this situation closely and provide updates as they become available. We note that legal challenges to similar COVID-19 mandates issued by the City of New York have survived initial challenges in state and federal courts that sought to prevent implementation.


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