New York State Mask or Vaccine Mandate Overview
As previously communicated on December 10, 2021, New York State Governor Kathy Hochul announced a mandatory mask requirement for all indoor public places unless a vaccine requirement has been implemented. The requirements started Monday December 13, 2021 and will run through January 15, 2022, at which time the State will re-evaluate the next steps. An “Indoor public place” is defined as “any indoor space that is not a private residence,” including businesses and venues in New York State that are publicly owned or privately owned by business entities.
If implementing a full vaccination requirement:
- Businesses and venues must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses may accept the Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe App, a CDC Vaccination Card, or other official immunization record.
- Fully vaccinated is defined as:
- 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
- 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine
If implementing a full masking requirement:
- Any person, past their second birthday and medically able to tolerate a face covering, must wear an appropriate mask while in any indoor place, regardless of vaccination status.
New York City Employer Guidance
- If you are implementing a full vaccination requirement as defined above for New York State:
- You are meeting the vaccination requirement for New York City
- If you are not implementing a full vaccination requirement as defined above for New York State:
- Ensure that as of December 27, 2021, all private sector employees in New York City receive at least one dose of COVID-19 vaccine to be permitted to work in-person.
- Employees will be required to receive their second dose 45 days from the date of their first dose if receiving a two-dose vaccination series.
Important to note:
- This requirement applies to all private employers, regardless of size.
- There is no “test-out” option unless an employee is granted a reasonable accommodation.
- Employees may not wear a mask as an alternative to a vaccination unless provided a reasonable accommodation.
- Regardless of the requirement you are implementing:
Acceptable Proof of Vaccination
“Proof of Vaccination” is considered proof of receipt of at least one dose of a COVID-19 vaccine. Proof can be established by:
- CDC COVID-19 Vaccination Record (photo or hard copy)
- NYC COVID Safe App
- NYS Excelsior Pass
- CLEAR Health Pass
- SMART Health Card (for those outside of New York state)
Accommodations and Exemptions
Pursuant to federal, state, and local law, employers are required to allow employees to request an exemption from the vaccination mandate. Employees may request a reasonable accommodation because of disability, pregnancy, childbirth, lactation, religious beliefs or observances, or status as a victim of domestic violence, stalking, or sex offenses, as applicable. Employers will be required to engage in the interactive process to determine what, if any, accommodation can be provided. However, employers do not need to provide an accommodation if the accommodation presents an undue burden on the employer.
This accommodation analysis will look just like accommodation requests in any other context.
- If the reason for not receiving vaccination is related to disability, pregnancy, childbirth, lactation, religious beliefs or observances, or status as a victim of domestic violence, stalking, or sex offenses, the business needs to consider potential reasonable accommodations.
- If the reason for not getting vaccinated is unrelated to these reasons, then the employee does not qualify for an accommodation, and must be vaccinated to be in the worksite.
- If the employee refuses, the employer can either put them on a paid or unpaid leave of absence or terminate their employment. The employee cannot be permitted to be in person at the worksite. Unless there is a reasonable accommodation which is a client business decision.
- Please review the NYC.Gov COVID-19 Vaccinations Page for guidance on Exceptions here.
** Please note: Consistency in determining accommodations is key **
Interaction with OSHA Emergency Temporary Standard (ETS)
New York City and New York State Employers should continue to follow the NYC and NYS Mandates. The ETS does not preempt generally applicable requirements meant to protect public health by helping to prevent the spread of COVID-19 in public spaces. It is suggested that you prepare for this mandate, which is scheduled to take effect January 10, 2022, as other requirements may be needed. Additional information will be forthcoming with a future communication.
Please refer to the OSHA ETS website for more information and resources.
Risk of Non-Compliance
For both New York State and New York City mandates, pursuant to regulations, the local health departments are tasked with enforcing these requirements, and violations are subject to civil and criminal penalties, including a fine of up to $1,000 per violation. Repeated violations may result in increased fine amounts or other enforcement action.
Links to Resources
NYC Vaccine Mandate: https://www1.nyc.gov/site/doh/covid/covid-19-vaccines-keytonyc.page
EEOC Enforcement Guidance on Reasonable Accommodations: https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#undue
NYC Sample Accommodation Form: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/vaccination-workplace-accommodations.pdf
If you have any questions, please reach out to your Human Resources Business Partner.