This month, New York employers have been flooded with COVID-19 related guidance concerning various mandates going into effect relatively quickly. Below is a summary of the most recent developments at the federal, state, and local levels. 

OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard

As we previously reported, OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) was stayed by the Fifth Circuit Court of Appeals shortly after it was released. Thereafter, the Sixth Circuit Court of Appeals was randomly selected via a lottery system by the judicial panel on multidistrict litigation to hear all challenges to the ETS. On December 17, 2021, the Sixth Circuit ruled in favor of OSHA and dissolved the stay issued by the Fifth Circuit, which means that the ETS is currently in effect.1 However, the future of the ETS is still uncertain, as several petitioners have applied to the U.S. Supreme Court to have the Sixth Circuit's decision enjoined.

Now that the stay has been lifted and the ETS is currently in effect, covered employers must work diligently to meet the ETS's requirements or risk fines of up to $13,653 for each violation and up to $136,532 for each willful violation.2 In a statement posted on its website, OSHA has advised that it will not issue citations for noncompliance with any of the ETS' requirements before January 10, 2022, and will not issue citations for noncompliance with the ETS' testing requirements before February 9, 2022, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."3 For more information regarding the ETS' requirements, please see our summary, which may be accessed here: https://www.pryorcashman.com/publications/deep-dive-a-review-of-oshas-covid-19-vaccination-and-testing-emergency-temporary-standard. 

NYC Private Employer Vaccination Mandate

Beginning December 27, 2021, NYC workers who perform work in person or who physically interact with others as part of their employment will have to provide proof of their COVID-19 vaccination status. Covered employers must exclude non-compliant workers, except where the worker has a reasonable accommodation or enters the workplace for a "quick and limited purpose." Workers must have their first dose by December 27, 2021, and if taking a two-dose series, must get their second dose no later than 45 days after their first dose. Below is a summary of the mandate's key points.

Which employers are covered?

The mandate applies to non-governmental entities maintaining or operating workplaces in NYC, so long as they employ more than one worker. The guidance defines a "workplace" as any place where work is performed in the presence of another worker or a member of the public. The mandate does not apply to covered entities or individuals who are already subject to another Order of the Commissioner of the Department, Board of Health, the Mayor, or state or federal entity that requires them to maintain or provide proof of full vaccination, or to individuals who have been granted a reasonable accommodation pursuant to such requirement. Importantly, the guidance states that covered entities or individuals "who are covered by the OSHA rule that allows either employee vaccination or testing must comply with this order - their workers must be vaccinated if they do not have a reasonable accommodation." 

Which workers are covered?

For purposes of the mandate, a "worker" is a full-time or part-time staff member, employee, intern, volunteer, or contractor of a covered entity. Note that the mandate covers workers who work in NYC, regardless of where they live. However, individuals who enter the workplace for a "quick and limited purpose" are not covered by the mandate.4 Individuals who work from home and/or who do not physically interact with others as part of their employment are also not covered.

What is a "quick and limited purpose"?

Workers may enter the workplace for a "quick and limited purpose," even if they have not shown the employer proof of vaccination. Per the guidance, examples of a "quick and limited" purpose include using the bathroom, deliveries, clocking in, or receiving an assignment before leaving to begin a solitary assignment.

How do employers verify a worker's proof of vaccination?

Employers should ask for identification (i.e., a driver's license, government ID card, IDNYC card, passport, school ID card, or work ID card) and an acceptable type of proof of vaccination (i.e., a photo or hard copy of their CDC vaccination card, the NYC COVID Safe App, NYS Excelsior Pass, official vaccine record, a CLEAR Digital Vaccine Card or Health Pass, or a photo or hard copy of an official vaccination record of an approved vaccine administered outside of the U.S.).

Must employers keep records of workers' vaccination status?

Yes. Employers may: 1) keep copies or pictures of workers' proof of vaccination; 2) create their own paper or electronic record containing the following information: workers' names, whether they are fully vaccinated, and if workers are submitting proof of the first dose, the date by which they must obtain the second dose; or 3) check the proof of vaccination before allowing a worker to enter the workplace and maintain a record of each verification (i.e. the employer would have to keep records of each time it checks the worker's proof of vaccination). For contract workers, employers may keep a record of the contractor's vaccination status but are not required to. Instead, employers may request that the contractor's employer confirm the contractor's vaccination status and maintain a record of the request and the confirmation. Employers should remember that vaccination information should be kept confidential, in a secure manner, separate from workers' personnel files, and with limited access. Additionally, employers must be prepared to make their records available for inspection upon request by a City agency.

What about reasonable accommodations?

The guidance makes clear that workers may request a reasonable accommodation for documented medical reasons (including but not limited to pregnancy), religious reasons, and for persons who are victims of domestic violence, sex offenses, or stalking. Employers are required to keep records concerning reasonable accommodations, including any accommodations granted, the basis for doing so, and any supporting documentation provided by the worker. (Generally, it's also a good idea to keep a record of accommodations that were not granted and the reasons for the denial.) Workers seeking a reasonable accommodation must apply by December 27, 2021. The City has provided guidance on reasonable accommodations for workers, including accommodation request templates for medical and religious reasons, which may be accessed here: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/vaccination-workplace-accommodations.pdf.

What about workers who refuse to comply with the mandate?

Absent an approved reasonable accommodation, employers must keep unvaccinated workers and/or workers who refuse to provide proof of vaccination out of the workplace. However, the guidance states that it's the employer's decision whether to discipline or fire such workers.

Are there penalties for noncompliance?

Yes. The guidance states that inspectors from various City agencies will be enforcing the mandate.  Employers who refuse to comply with the mandate may be subject to a $1,000 fine and escalating penalties for repeated violations.

Are there any other requirements?

Yes. Employers must post a one-page attestation sign that they must fill out and place in a conspicuous location. The sign may be accessed here: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-workplace-requirement-affirmation.pdf.

Where can I find more information?

NY State Face Covering Mandate  

Effective December 13, 2021, businesses and venues must require that everyone wear a face covering at all times regardless of their COVID-19 vaccination status (except when eating, drinking, or alone in an enclosed room), unless such businesses/venues require proof of vaccination as a condition of entry. The face covering requirement applies to all non-private residences, including office spaces, and to individuals who are beyond their second birthday and are medically able to tolerate a face covering. Additionally, regardless of which requirement businesses/venues select (i.e., require proof of vaccination for entry or require face coverings at all times with the limited exceptions noted above), the requirement must apply to everyone entering the premises, including staff, patrons, visitors, and guests. Regarding what is acceptable proof of vaccination, the State is requiring that individuals be fully vaccinated (i.e., 14 days past an individual's last vaccination dose in their initial vaccine series). However, the State's current definition of "fully vaccinated" does not include booster and/or additional doses.

The face covering requirement is currently in effect and will continue until January 15, 2022, when the State will "re-evaluate next steps." Per the State's guidance, unvaccinated individuals continue to be responsible for wearing face coverings in accordance with CDC guidance. For more information, businesses/venues may consult the State's FAQs, which may be accessed here: https://coronavirus.health.ny.gov/frequently-asked-questions-proof-full-vaccination-or-mask-requirement-businesses-and-venues.

Interplay Between OSHA ETS and State/Local Laws

Many employers who are subject to both the ETS and state/local laws addressing COVID-19 related precautions are wondering which laws to follow. At this time, it is not entirely clear whether the ETS preempts all of the state/local laws addressing COVID-19, or only those laws which conflict with the ETS. OSHA has made clear that the ETS is meant to preempt conflicting laws.5 However, language in the ETS suggests that it may also preempt laws relating to the issues addressed by the ETS (i.e., overlapping laws and/or those that impose requirements that go beyond those in the ETS).6

Hence, employers subject to stricter state/local laws, such as NYC's private employer vaccination mandate (which is discussed in more detail below), should comply with the stricter requirements of both laws until further guidance is released or a court of competent jurisdiction issues a decision on the issue. 

Footnotes

1 The Sixth Circuit's decision may be accessed here: https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf.

2 See 29 C.F.R. § 1903.15(d).

3 OSHA's webpage may be accessed here: https://www.osha.gov/coronavirus/ets2.

4 Performing artists and athletes who are not required to be vaccinated per the Key to NYC program are also not covered.

5 For example, OSHA states: "In particular, OSHA intends to preempt any State or local requirements that ban or limit an employer's authority to require vaccination, face covering, or testing." See the ETS on page 61507 here: https://www.osha.gov/sites/default/files/laws-regs/federalregister/2021-11-05.pdf.

6 See the ETS on pages 61507 - 61509 here: https://www.osha.gov/sites/default/files/laws-regs/federalregister/2021-11-05.pdf.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.