By Abby Natelson, Esq. and Rachel H. Khedouri, Esq.
In an effort to protect the health of New Yorkers and businesses amid increased COVID-19 cases and hospitalizations, the State of New York and the City of New York have implemented mask and vaccine mandates, respectively.
New York State Mask Mandate for Indoor Public Places, Effective December 13, 2021
Effective Monday, December 13, 2021, businesses with any indoor space that is not a private residence in New York State — including office spaces — must require that all employees and patrons two years and older, regardless of vaccination status, wear a mask at all times while indoors. An exception may be made when individuals are actively eating or drinking and for those medically unable to tolerate a face covering. The mask mandate will not apply to businesses that require everyone 5 years of age or older to provide proof of vaccination as a condition of entry and are not otherwise subject to state or federal masking requirements. Where businesses implement this mandatory vaccination requirement, children ages 5 – 11 must provide proof of one dose of the vaccine, and children 2 – 5 who remain ineligible for a vaccine at this time must wear a mask. Violations of this mandate may lead to civil penalties, including fines of up to $1,000 for each violation.
This measure is effective until January 15, 2022, at which time New York State will re-evaluate the need for the mandate.
Even when not required by the new mandate, New York State and New York State’s Department of Health continue to strongly recommend masks in all public indoor settings as an added layer of protection.
Consistent with this mask mandate, the New York Commissioner of Health extended the designation of COVID-19 as a highly contagious communicable disease that presents a risk of harm to the public (see previous announcements in NFC’s November 3, 2021 e-Alert). This designation means that employers must keep their HERO Act Airborne Infectious Disease Prevention Plans in effect through at least January 15, 2022.
New York City Vaccine Mandate, Effective December 27, 2021
As previously reported in NFC’s December 7, 2021 e-Alert, NYC Mayor Bill de Blasio announced a vaccine mandate requiring that employees who work in-person for private employers receive at least one dose of the COVID-19 vaccine by December 27, 2021. The mandate does not allow an opt-out testing alternative.
New York City has now published guidance clarifying that this sweeping vaccine mandate applies to all non-governmental entities that employ more than one worker in NYC or maintain a workplace in NYC (and who are not subject to another governmental order requiring proof of full vaccination). The mandate also applies to self-employed individuals who work at a workplace or interact with workers or the public in the course of their business. For purposes of the mandate, a workplace is defined as any place where work is performed in the presence of another worker or the public, including a vehicle.
Employers subject to the NYC vaccine mandate must take the following actions by December 27, 2021:
- Verify that all workers in NYC who perform in-person work or interact with the public in the course of business — including full- and part-time staff, interns, volunteers, and contractors — have received at least one dose of a COVID-19 vaccine. Workers have 45 days to show proof of a second dose (for Pfizer or Moderna vaccines).
- Keep a record of each worker’s proof of vaccination for inspection upon request by a City agency. The record may be in the form of (1) a copy of proof of vaccination or record of reasonable accommodation with supporting documentation; (2) a paper or electronic record created by the employer including the name of each worker, their status as vaccinated, and date of the second dose as applicable, or record of reasonable accommodation with supporting documentation; or (3) a record of daily checks verifying each worker’s proof of vaccination.
- For contractors, rather than checking each individual, businesses may request confirmation of vaccination from the contractor’s employer and keep a record of the request and confirmation.
- Complete a certificate affirming they are in compliance with the vaccine mandate and post it in a conspicuous location in the workplace.
Businesses must prohibit unvaccinated individuals or those who refuse to show proof of vaccination from entering the workplace, with the following limited exceptions:
- Workers who have been granted a religious or medical accommodation or who continue working while requests for medical or religious accommodations are promptly and appropriately being processed, provided such requests are submitted by December 27, 2021. Guidance for employers on processing accommodation requests can be found HERE;
- Workers who wish to enter the workplace for a quick and limited purpose (for example, use of the bathroom or making a delivery); and
- Individuals who work alone (at home or otherwise) where there is no in-person contact with co-workers or the public (for example, remote workers).
The City warns that refusal to comply with this mandate may lead to an initial fine of $1,000 and escalating penalties for continued violations.
NFC will continue to keep you apprised of developments relating to NY and NYC COVID-19 requirements. If you have any questions relating to COVID-19 policies or would like guidance relating to your policy, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.