NYC Vaccine Mandate Taking Effect next Monday

On December 15, 2021, New York City released GUIDANCE on the private employer
vaccine mandate which is scheduled to take effect Monday, December 27. As we had
reported, this mandate would apply to New York City employees who perform in-
person work or interact with the public, and it would require them to show proof they
have received at least one dose of a COVID-19 vaccine by December 27. Partially
vaccinated workers then have 45 days to show proof of their second dose. Since the
majority of home care providers have already been covered by the DOH’s mandate
since August 26, the following is only relevant to New York City fiscal intermediaries.

Covered Businesses and Workers
The vaccine mandate applies to all employers that employ one or more workers in
New York City or that maintain a workplace in New York City. The mandate also
applies to self-employed individuals and sole proprietors who work at a workplace or
interact with workers or the public in the course of their business. Thus, a consumer –
even if he or she is not a joint employer – could be covered by this mandate.

Notably, the order does not apply to businesses who are 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.” For instance, LHCSAs and CHHAs are already under a DOH order of
vaccination and, thus, not covered by the City’s mandate.

The vaccine mandate applies to all individuals who work in-person in New York City at
a “workplace,” which is defined broadly as “any location, including a vehicle, where
work is performed in the presence of another worker or member of the
public.” Arguably, this language excludes a home setting since no member of the public
or another worker are present in the home. However, there is ambiguity in this

The mandate includes exemptions for:

  1. Individuals who work from home and whose employment does not involve
    interacting in-person with co-workers or members of the public – this is a
    potential carve-out that would might personal assistants who live
    with their
    consumer to be excluded from coverage
  2. Non-New York City residents who are performing artists, athletes, or individuals
    accompanying such performing artists or athletes who do not have to display
    proof of vaccination pursuant to the Key to NYC program; and
  3. Checking proof of vaccination daily before allowing a worker to enter the
    workplace and maintaining a record of the verification.
  4. Individuals who have been granted a reasonable accommodation (as discussed
    further below).

Proof of Vaccination and Certifying Compliance
The mandate requires that covered employers verify each covered worker’s vaccination
status by doing one of the following:

  1. Maintaining a copy of each worker’s proof of vaccination or reasonable
    accommodation documentation;
  2. Maintaining a paper or electronic record that includes: (a) the worker’s
    name; (b) whether the worker is fully vaccinated; (c) for workers who
    submit proof of partial vaccination, the date by which proof of the second dose
    must be provided; and (d) for workers who do not submit proof of vaccin-
    ation because of a reasonable accommodation, that such accommodation was
    provided; or
  3. Checking proof of vaccination daily before allowing a worker to enter the
    workplace and maintaining a record of the verification.

While contract workers are covered by the mandate, employers may request that the
contractor’s employer confirm that the contractor is vaccinated in lieu of verifying proof
of vaccination by one of the methods listed above. Businesses taking advantage of this
option must maintain a record of the request as well as the confirmation from the
contractor’s employer.

The guidance goes on to explain that employers may accept the following forms of
proof of vaccination: (1) A CDC COVID-19 vaccine card; (2) a New York City COVID-19
Safe App record; (3) A New York State Excelsior Pass/Excelsior Pass Plus; (4) A
CLEAR Health Pass; and (5) other official vaccine records from the jurisdiction where
the vaccine was administered, or from a healthcare provider or other approved
immunizer who administered the vaccine, that provides the person’s name, vaccine
brand, and date of administration. A digital photo or photocopy of such record is also

By December 27, businesses must also complete a CERTIFICATE affirming they are in
compliance with the vaccine mandate and post the certificate in a public place.

Exemptions from the Mandate
The guidance also makes clear that employers must consider requests for reasonable
accommodations related to the vaccine requirement from employees who request them
because of disability, pregnancy, childbirth, lactation, religious beliefs or observances,
or status as a victim of domestic violence, stalking, or a sex offense. Workers must request
a reasonable accommodation by December 27 in order to continue working unvaccinated
in a workplace covered by the order. Notably, the guidance states that employers may
continue to allow workers who have requested an accommodation to enter the workplace
while the request is pending.

Employers must maintain documentation stating the basis for granting accommodations
for employees, including any supporting documentation provided by the requesting
employee. The guidance provides employers with a CHECKLIST that can be used to evaluate
the exemption or accommodation request. If an employer chooses to utilize these checklists,
the lists should be kept on file and maintained as a record of any exemptions or accommodations
that are granted by the employer. As with any other accommodation request in New York City,
employers must provide a written communication of the employer’s determination regarding
the accommodation at the conclusion of the cooperative dialogue process.

The guidance provides the following, non-exhaustive list of conditions that may qualify for
a permanent medical exemption: (1) the requesting employee had a severe allergic reaction
after a previous dose or to a component of all three approved COVID-19 vaccines; or (2)
the requesting employee has a known diagnosed allergy to a component in all three approved
COVID-19 vaccines.

temporary medical exemption may be granted if the requesting employee: (1) has presented
medical documentation showing that they are within 90 days of monoclonal antibody or
convalescent plasma treatment of COVID-19; (2) has presented medical documentation
showing they recently underwent stem cell transplant, CAR T-cell therapy, or other therapy
or treatment that would temporarily interfere with the worker’s ability to respond adequately
to vaccination; or (3) has pericarditis or myocarditis. Again, this list is non-exhaustive. The
guidance also states that medical documentation must be from the worker’s treating physician
with a valid medical license.

For religious accommodations, the guidance provides the following reasons an employee may qualify
for a religious accommodation: (1) the employee has explained/documented how the belief requires
the employee not to be vaccinated; (2) the employee has not taken other kinds of vaccinations previously, and if the employee has received other vaccines, they should explain why those vaccines were not against their religion; (3) the employee says their religious belief prevents them from allowing certain substances to enter their body; or (4) the employee says that they cannot take the vaccine because it was developed and/or tested using fetal cells that the worker is concerned may have been the result of an abortion, and the worker does not also take other medications similarly developed or tested using fetal cell derivative lines.

Given the exemptions allowed – and the expansiveness of the exemptions as compared to the DOH’s
limited exemptions – CDPAP providers are likely to obtain a number of exemption requests from
personal assistants who are not yet vaccinated.

Enforcement and Penalties for Noncompliance
According to the Guidance, inspectors from various City agencies will begin enforcing the Order on December 27, 2021, and all inspectors, no matter which agency they are from, will be inspecting for compliance with the same requirements.

Although the Guidance Documents provide that the goal is to educate and work with businesses to help
them achieve compliance, if a business refuses to comply, it would be subject to a fine of $1,000 and
escalating penalties thereafter if violations persist. If you have any questions about this topic, please do not hesitate to reach out.

No FI is likely to lose their “license” to operate as a fiscal intermediary for violation of this mandate, however, it is not advisable, especially for lead fiscal intermediaries, to garner attention by violating the City’s Order.