New York City Vaccine Requirements Cause Significant Compliance Problems for Covered Retailers

On Aug. 16, New York Mayor Bill de Blasio released Executive Or 225 (the “Order”) and related guidance about the “Key to NYC” vaccination requirements for almost all patrons, employees interns volunteers and patrons who enter indoor dining, entertainment and fitness venues.

These requirements require that all persons aged 12 and older show proof they have received at least one dose (or more) of the approved COVID-19 vaccination before they are allowed to enter certain indoor covered facilities. According to the New York City guidance, businesses must verify that anyone 18 years old or older is identified.

Some businesses may be surprised by this identification verification requirement. The focus of de Blasio’s announcements about the mandate has all been on proof of vaccination. These were the first requirements of this type to be made public in the country.

Written Policies for COVID-19 Vaccine Protocol

The policy must be written by covered businesses and must be posted in a visible place where potential patrons can see it.

The guidance and the enacting orders don’t provide any specific details about what these plans should include. However, businesses should consider including in their policies details on who will verify the vaccination status of patrons and employees, as well as how this will be done and where records will be kept. Businesses need to quickly determine who will check vaccination status, then train those people on the best processes to follow and how to avoid any conflict with patrons refusing proof of vaccination.

The NYC guidance states that businesses must inspect identification documents to verify that proof of vaccination has been verified.

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COVID-19 Vaccine Mandat: Exceptions and Accommodations

Businesses must also understand that some people may not be vaccinated due to various reasons. Businesses must have a dialogue with patrons who are unable to be vaccinated because of a disability. They should also consider whether there is a reasonable accommodation that would allow them to use the business’s products and services without posing any threat to the business. This process must be followed by businesses for employees as well, which includes employees who are unable to vaccinate due to disability, pregnancy or religious beliefs, as well those who have been victims of domestic violence, stalking, or sex crimes.

The business will determine the form of accommodation required. Customers can purchase food for them to take, sign up for a virtual class or talk with a sales representative over the phone. Employers can ask employees if they are able to work remotely, outside of the premises or in an area that is separate from others. An employee who requests accommodation may need to provide documentation. However, the employer must also issue a final written decision explaining whether accommodation will be provided.

These requirements went into effect on August 17th, and New York City inspectors began enforcing them, possibly issuing fines, starting Sept. 13. Businesses should ensure that they have a proper process in place.

Daniel A. Kadish represents employers in employment disputes. He has also been a leader of Morgan Lewis’ COVID-19 compliance counseling and team. Leni D. Battaglia represents employers in US courts and tribunals. She also develops litigation-avoidance strategies to clients from a variety of industries, including technology, financial services, e-commerce and hospitality. As co-leader, he is responsible for Morgan Lewis’ luxury and fashion brands team.