On December 13, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene issued an emergency Order mandating Covid-19 vaccination for private employees pursuant to Section 3.01(d) of the Health Code and Sections 556 and 558 of the New York City Charter. The emergency Order requires covered businesses to generally exclude their unvaccinated workers in New York City starting December 27, 2021. Whereas previous mandates applied primarily to city employees and individuals working with children and other vulnerable populations (including physicians and other health care workers), the new Order now applies to any “non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City.” The mandate also applies to solo practitioners who work in shared workspaces or interface with the public. The Order, which permits “reasonable accommodations for medical or religious reasons,” will remain in effect until rescinded, amended, or modified by the Board of Health.
Beginning December 27, 2021, workers must provide proof of vaccination against Covid-19 to their employer before entering the workplace. The covered employer must exclude from the workplace any worker who has not provided such proof, except for individuals working from home who do not interact with co-workers or the public, individuals entering the workplace “for a quick and limited purpose,” and non-city residents who are performing artists or college or professional athletes as defined under the “Key to NYC” program rules. Under the Order, a “worker” is defined as a “full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.” The order does not apply to employers or individuals who are already subject to another Order of the Department, the Board of Health, the Mayor, or any State or federal entity that is currently in effect and requires the entity to maintain or provide proof of full vaccination, or to individuals who have been granted a reasonable accommodation pursuant to another Order.
Covered employers are required to verify all workers’ proof of vaccination and/or record of reasonable accommodation, maintaining a record of each worker’s name, whether the worker is fully vaccinated, and the basis for any reasonable accommodation with supporting documentation. For contractors and other non-employee workers, the covered entity may instead request that the worker’s employer confirm the proof of vaccination, but must maintain a record of the request and confirmation. Upon request by any City agency, the covered employer must produce these records for inspection. Records created or maintained pursuant to the Order must be treated as confidential by the covered employer. No later than December 27, 2021, covered employers must affirm compliance using a form to be provided by the Department and must post the affirmation conspicuously.
The stated purpose of the new vaccine mandate is to take action to reduce the transmission of Covid-19 as necessary “for the health and safety of the City and its residents… to protect the public health against an existing threat.” The decision to issue the Order was based in part on a study by Yale University, which “demonstrated that the City’s vaccination campaign was estimated to have prevented approximately 250,000 Covid-19 cases, 44,000 hospitalizations, and 8,300 deaths from Covid-19 infection since the start of vaccination through July 1, 2021.” The Department found that “between January 1, 2021, and June 15, 2021, over 98% of hospitalizations and deaths from Covid-19 infection involved those who were not fully vaccinated.”
Jessica Woodrow is an Associate Attorney in the litigation and administrative proceedings practice group, handling matters involving all aspects of civil litigation with a primary practice focus on healthcare law. She can be reached at firstname.lastname@example.org or 516-627-7000.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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