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New York City publishes guidance on employers’ vaccination duty

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
New York City has published guidance on its requirement for private employers to ensure in-person employees are vaccinated, which took effect on 27 December 2021.

NYC released guidance on 15 December 2021 regarding its mandatory vaccine requirement for private employers (discussed here). Effective from 27 December 2021, employees who perform in-person work for private employers in NYC are required to provide proof that they received at least one dose of the COVID-19 vaccine. If the vaccine requires two doses, employees will then have 45 days to submit proof of their second dose. Employees who are not vaccinated must be excluded from the workplace unless one of the limited exceptions discussed below applies.

The vaccine mandate broadly applies to all workplaces in NYC that employ more than one employee. A workplace is defined as ‘any place where work is performed in the presence of another worker, or a member of the public.’ The mandate also applies to self-employed individuals and sole proprietors who work at a workplace or interact with other workers either in-person or in public in the course of their work. The mandate does not apply to businesses already subject to ‘another Order of the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that is in effect and requires them to maintain or provide proof of full vaccination.’ Notably, the guidance provides that businesses ‘who are subject to federal requirements that are not currently in effect because of a court order must comply with this order,’ including the currently stayed federal contractor vaccine mandate.

The new requirement covers all employees, including full-time workers, part-time workers, interns, volunteers, and contractors. Only the following individuals are exempt from the mandate:

  • employees working remotely;
  • employees entering the workplace for a ‘quick and limited purpose’;
  • performing artists or athletes who are not required to be vaccinated pursuant to the Key to NYC programme (the NYC vaccine pass programme for indoor activities); and
  • employees who have been granted a reasonable accommodation.


The guidance confirms that employers must consider employees’ requests for reasonable accommodations for religious or medical purposes. Specifically, employees with a ‘sincerely held religious belief (not a social or political belief), or a medical condition that prevents them from being vaccinated were able to apply for a reasonable accommodation’ by 27 December.  Employers may permit those employees to continue coming to the workplace while they engage in the requisite ‘cooperative dialogue’. NYC’s agencies maintain the right to review reasonable accommodation records to ensure employers are ‘handling requests promptly and appropriately.’ Guidance on how employers can handle accommodation requests can be found here.

Employers are required to obtain proof and keep records of each worker’s vaccination status. Employers can either make a copy of employees’ vaccination cards or create their own record that includes employees’ names and vaccination status. Employers must store this information in a secure manner to protect the privacy and security of the information. From 27 December, employers are also required to post a one-page affirmation of compliance in a conspicuous location in the workplace. A link to the attestation can be found here.

Businesses that fail to comply with the new mandate are subject to a USD 1,000 fine and ‘escalating penalties thereafter if violations persist.’

Philip K. Davidoff
FordHarrison LLP
Timothy M. Barbetta
Senior Associate
FordHarrison LLP