Beginning August 17, New York City restaurants and bars, fitness centers, and entertainment and recreational venues such as theaters, museums, casinos, and concert and sports venues must require both staff and patrons aged 12 and older to provide proof they have received at least one dose of an approved COVID-19 vaccination for dining, working out and attending entertainment events indoors.
The vaccine mandate—called the Key to NYC—and the accompanying Executive Order 225 by Mayor Bill DeBlasio, come as COVID-19 cases are again on the rise in the city and around the country due, in large part, to the emergence of the more contagious Delta variant of the virus and the number of people who remain unvaccinated. The indoor vaccination requirements follow the directive that all new hires employed by the New York City government must be vaccinated against COVID-19, which took effect on August 2.
The vaccine mandate, executive order and frequently asked questions raise a host of legal and logistical questions for employers and establishment owners, which have only a short grace period to implement required vaccine verification protocols before enforcement begins September 13.
- Covered Venues
- Exempt Venues
- Who Needs to Show Proof of Vaccination and ID?
- Who’s Exempt From the Mandate?
- Other Employer and Business Obligations
- Hard Enforcement With Penalties Begins September 13
- New York City Human Rights Law Interplay
- What It Means for Covered Businesses
- What It Means in the Employment Context
Mayor DeBlasio’s August 16 Executive Order 225 casts a wide net over establishments and indoor premises.
Indoor dining includes not only restaurants, bars and nightclubs but also indoor dining facilities in hotels, cafeterias at colleges and universities, malls and food courts, businesses that provide on-premises catering, and grocery and food markets, bodegas, and other food retailers that offer indoor on-site eating, but only for those patrons who choose to use the indoor seating.
Indoor entertainment and recreational settings include the indoor portion of a large list of venues, including movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial event and party venues, museums and galleries, aquariums and zoos, professional sports arenas and indoor stadiums, convention centers and exhibition halls, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers.
Indoor fitness establishments include a similarly long list of places—not only stand-alone gyms and fitness centers but also gyms in hotels and universities, as well as dance, yoga and other similar studios that offer group classes with two or more people taught by an instructor; boxing gyms and indoor pools; tennis facilities; and ice-skating rinks.
- Staff (including full- and part-time employees, interns, and volunteers)
- Contractors hired to work at covered venues
Proof of Vaccination
Individuals subject to the Key to NYC must show proof of at least one dose of a vaccine approved by either the U.S. Food and Drug Administration (FDA) or the World Health Organization (WHO).
The following forms of vaccination proof are acceptable:
- New York State Excelsior Pass. To present digital proof of vaccinated status, an individual must visit the Excelsior Pass web portal; answer a few questions to confirm vaccine information; and then print the pass, take a screenshot or store it on a smartphone.
- NYC COVID Safe App. Proof of vaccination can also be stored on smartphone apps, available on Google Play for Android and the Apple Store for iOS.
- Centers for Disease Control and Prevention (CDC) Vaccination Card. Individuals can also present a photo or hard copy of the CDC proof of vaccination card they were issued upon receiving their first shot (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/second-shot.html#vaccination-second-shot).
- NYC Vaccination Record. Proof of vaccination may also be obtained by contacting the NYC Health Department’s Citywide Immunization Registry (CIR), which collects New Yorkers’ vaccine records (https://www1.nyc.gov/site/doh/services/cir-parents-guardians.page).
- Non-U.S. Vaccination Record. A photo or hard copy of an official vaccination record of a vaccine administered outside the U.S. for a WHO-approved vaccine is also acceptable. These records must include the person’s first name and last name, date of birth, vaccine product name, date administered, and site where the vaccine was administered or person who administered the vaccine.
Covered businesses are not required to verify that the proof of vaccination is real, but New York City offers options for reporting suspected fake vaccination cards, including calling 311 or 833-VAX-SCAM (833-829-7226), reporting it to the New York State Attorney General by filing a complaint via https://ag.ny.gov/complaint-forms, or emailing the state Department of Health at STOPVAXFRAUD@health.ny.gov.
Proof of ID
Covered businesses must verify that the identity of individuals 18 years or older matches the proof of vaccination, and may, but are not required to, verify the identity of individuals under 18. The identification need not have a photo, but it must be an official document containing the name of the individual along with either a photo or date of birth. Copies of identification documents, including photos on phones, are sufficient.
Businesses need not check the identity of people, such as staff or members of a fitness or entertainment institution, if proof of vaccination is matched against identity records the business already maintains. They may also keep records of individuals who have previously provided proof of vaccination, rather than require the proof be displayed every time a person enters the establishment.
- Individuals under the age of 12
- People entering “for a quick and limited purpose” (the examples given include using the restroom, placing or picking up an order, changing clothes in a locker room, or performing necessary repairs)
- Performing artists, professional athletes and teams, and their staff, while in a covered venue to perform or compete, but only if they are not residents of New York City
While this group of people need not show proof of identity and vaccination, they must wear a face mask at all times inside a covered venue if they cannot maintain six feet of social distance from others.
Sign Posting Requirement. Businesses and venues covered by the Key to NYC mandate must post a sign notifying individuals of the vaccination requirement in a conspicuous location easily visible before entry into the indoor area. The wording of the sign is determined by the Department of Health and Mental Hygiene (DOHMH), and businesses can use a sign provided by the DOHMH or create their own sign using the prescribed text and meeting the size and font requirements.
Signs must be at least 8.5-by-11 inches, use at least 14-point font and include this text: “New York City requires staff and customers 12 years of age and older to be vaccinated against COVID-19 in order to enter this establishment. To find out where to get a free COVID-19 vaccine, visit nyc.gov/vaccinefinder or call 877-VAX-4NYC (877-829-4692). For more information on the Key to NYC, visit nyc.gov/keytoNYC.”
Written Protocols. Covered businesses must have a written record describing how they verify proof of vaccination. The record must be maintained on-site and available for inspection.
While the Key to NYC policy took effect August 17, New York City will delay enforcement until September 13. Beginning September 13, covered businesses that fail to follow the Key to NYC mandate will face a minimum fine of $1,000 for an initial infraction. Covered businesses that incur second violations within a 12-month period will be assessed a minimum $2,000 fine, and thereafter, any additional violations incurred within 12 months of the second penalty will be assessed at a minimum of $5,000 per infraction. According to New York City’s guidance, each failure to verify proof of vaccination counts as a separate violation.
New York City covered businesses should be mindful of the interplay between the Key to NYC’s vaccine mandate and obligations to provide reasonable accommodations to both employees and customers under the New York City Human Rights Law (NYCHRL) (in addition to Title VII, the Americans with Disabilities Act and the New York State Human Rights Law). To that end, the New York City Commission on Human Rights (NYCCHR) has issued guidance.
Businesses must apply their verification protocols free from discrimination or harassment based on patrons’ and employees’ protected characteristics. The NYCCHR guidance lays out prohibited practices:
- Scrutinizing individual A’s proof of vaccination more closely than proof provided by other people based on the perception that people of individual A’s race, national origin or religion are less likely to be vaccinated
- Requiring proof of vaccination only from older people or people with disabilities based on the belief that COVID-19 is more dangerous to them
- Refusing to accept certain types of valid proof of vaccination, such as official immunization records from countries outside the U.S. or photographs of CDC vaccination cards
The NYCHRL applies to all employers with four or more employees. In addition, the NYCHRL’s employee protections extend to interns and independent contractors. The NYCCHR recognizes four protected reasons that an employee cannot show proof that they are vaccinated as required by the Key to NYC: (1) medical condition; (2) pregnancy; (3) religious beliefs; and (4) status as a victim of domestic violence, sex offenses or stalking.
Cooperative Dialogue and Reasonable Accommodation Requirement. Pursuant to the NYCCHR’s guidance, employers must engage in a “cooperative dialogue” (i.e., a good faith discussion) to see if a reasonable accommodation is possible from the vaccine requirement, or if additional time to provide proof of vaccination due to one of the recognized protected reasons should be provided. The NYCCHR suggests that reasonable accommodations may include remote work, performance of the job outdoors or isolated from other employees.
However, like all other reasonable accommodations, an employer is not required to provide an employee with accommodations that would cause a significant risk of substantial harm to the health or safety of the employee, other employees or customers.
What if no reasonable accommodation is available? In such case, the NYCCHR indicates that an employer may offer the employee a leave of absence until such time that the employee is able to show proof of vaccination or it is otherwise safe for the employee to resume work.
Written Proof. Employers may require written proof from employees who seek reasonable accommodations from the vaccine mandate due to one of the recognized protected reasons.
Protected Reason and Proof Employer May Require
- Medical condition. Employer can request a note from an employee’s medical provider supporting the inability to show proof of vaccination.
- Pregnancy. Employer can request a note from an employee’s medical provider supporting the inability to show proof of vaccination.
- Religious beliefs. Employer can request supporting documentation if the employer has an objective basis to question the sincerity of the stated religious basis for an employee’s inability to show proof of vaccination.
- Status as a victim of domestic violence, sex offenses or stalking. Employer can request a note from a related service provider supporting an employee’s inability to show proof of vaccination.
What It Means From a Customer Standpoint
Businesses open to the public should already be familiar with their obligation to provide reasonable accommodations to customers on the basis of disability. The NYCCHR guidance emphasizes that customers have the right to a reasonable accommodation if they are unable to show proof of vaccination due to a disability. Notably, the NYCCHR guidance does not include exceptions to the Key to NYC mandate, such as because of sincerely held religious beliefs.
Importantly, the NYCCHR guidance stresses that businesses should not ask customers for proof of disability or ask invasive questions about the nature of such disability. Instead, the business is required to engage in a cooperative dialogue with the customer to see if a reasonable accommodation is possible that would not pose a direct threat or an undue hardship to the business, its employees or other customers.