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August 27, 2021

Legal News

August 27, 2021

Key to New York City – The COVID-19 Vaccination Mandate – August 2021

New York City Mayor Bill de Blasio recently issued the Executive Order No. 225, more commonly known as the “Key to NYC Pass,” on August 16, 2021, requiring all patrons and employees of indoor activities, such as indoor entertainment, dining, and gyms, to provide proof of having received at least one dose of any widely accepted COVID-19 vaccine before being permitted inside the covered establishment, which immediately went into effect on August 17, 2021. Below you will find a brief summary of how Mayor de Blasio’s most recent executive order mandating the COVID-19 vaccination may impact your business and/or employment. 

Pursuant to the “Key to NYC Pass,” certain covered establishments have until September 13, 2021, to transition into compliance with the executive order. After which, the executive order mandates that all covered establishments “check the vaccination status of all staff and customers 12 and older,” and prohibits such establishments from permitting “entry to anyone 12 and older who has not received at least one dose of the COVID-19 vaccine.” Under this new mandate, “testing out” is not an option, and thus, a recently negative COVID-19 test result will not be a sufficient substitute to providing proof of recent vaccination; however, exceptions may be made to allow for unvaccinated patrons to enter the business for less than 10 mins in emergency situations, such as to use the bathroom. 

Covered Establishments

The “Key to NYC Pass” mandate only applies to establishments that can be defined as being an:

  1. Indoor entertainment and recreational facility, including movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens, commercial events and party venues, museums and galleries, aquariums, 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, etc; 
  2. Indoor food dining, including all indoor dining establishments that receive letter grades from DOH, indoor seating areas for food courts, food catering establishments that provide food indoors, and any food service establishment that offers food for on-premise consumption and is regulated by the New York State Department of Agriculture and Markets, etc; and 
  3. Indoor gyms and fitness facilities, including indoor standalone and hotel gyms and fitness centers, gyms and fitness centers in higher-education facilities, all indoor studios, etc.

However, the mandate excludes pre-kindergarten through 12th grade public and private school programs, childcare programs, senior centers, community centers, establishments that provide food for exclusively off-premises or outdoor consumption, and establishments that are located inside of a residential or office building where use of the establishment’s facilities are limited to residents, owners, or tenants of that building. 

Next Steps for Covered Establishments

Starting September 13, a task force, very similar to that of the department of health, will be assembled and charged with going from business to business enforcing the new mandate. Accordingly, to prepare for the enforcement of this mandate, covered establishments should:

  1. Print off the ”Vaccination Required” poster found on NYC’s Department of Health’s (“DOH”) website and place it in a clearly visible location so that people will see it before entering your establishment; 
  2. Post information regarding the types of proof of vaccination that is accepted, which are:
    a.  NYC COVID Safe App;
    b.  Excelsior Pass; 
    c.  CDC Vaccination Card (or photo of one); 
    d.  NYC Vaccination Record; and
    e.  an official immunization record from outside NYC or the US. 
    (NOTE: Vaccination records from outside of the US must contain the person's name, date of birth, the brand of vaccine, the date it was administered, and the site where it was administered or who administered it it); and
  3. Draft an implementation plan that includes how your establishment will check the vaccination status of staff and patrons before entry, which must be shown during the inspection. 

Penalties for Non-Compliance

The Key to NYC Pass’ task force will begin inspections and enforcement on September 13, 2021. Under the vaccination mandate, every single incident of a covered establishment’s failure to check an individual's vaccine status will be considered a separate violation of the executive order, and pursuant to the executive order, any establishment who is found to be in violation of the executive order is subject to a fine of at least $1,000 per violation. Furthermore, if a covered establishment is found to be in a consecutive violation of the vaccine mandate within twelve (12) months of its prior violation, then the fine increases to a minimum of $2,000 per violation. For every consecutive violation within that twelve (12) month window thereafter, the penalty increases to a minimum of $5,000 per violation. Citations are likely to be issued on-site during the inspection. 

Exempt Individuals 

However, certain persons are exempt from the vaccination mandate provided that they wear a face covering at all times when they are unable to maintain 6 feet of distance from others. These individuals are those who are:

  1. A non-NYC resident performing artist, who is on the premises for the purposes of performing and is not regularly employed by the covered establishment;
  2. A non-NYC resident professional athlete, who is on the premises for the purposes of competing and is not regularly employed by the covered establishment; 
  3. A non-NYC resident accompanying a performing artist or professional athlete, who is on the premises as a part of their employment with the performing artist or professional athlete while the performing artist or professional athlete is performing/competing; and
  4. Children under 12. 

Employee Accommodations 

Although the executive order does not explicitly create any exceptions to this mandate, both NYC and NYS have long since had anti discriminatory laws that prohibit certain discriminatory practices, while providing protections for certain groups, such as those with a religious or medical based reason for not getting one. Moreover, the executive order clearly states that the vaccine mandate ”may not be used as an excuse for businesses to discriminate against anyone who has valid vaccination proof.” Likewise, Section 7 of the Executive Order directs the NYC’s Commission on Human Rights to develop guidance to assist covered entities in complying with the order “in an equitable manner consistent with applicable provisions of the New York City Human Rights Law.” Thus, it is clear the Human Rights anti discriminatory laws are still applicable during the implementation of this executive order. 

Accordingly, employees, and even presumably patrons, who cannot be vaccinated due to a medical disability or a sincerely held religious belief must be accommodated, and thus, further guidance from NYC’s Commission on Human Rights is to be expected. As NYC continues to provide updates of the executive order and its enforcement, we will continue to provide guidance regarding how such changes may impact your place of business and/or employment. Please do not hesitate to reach out to us for additional guidance regarding any concerns you may have regarding the Key to NYC Pass executive order. 

Photo by Анастасия Купавцева - Adobe Stock
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