“Key to NYC” Vaccination Guidance, Best Practices and Webinar Invitation

Good Afternoon –

Happy August 16^th, everyone!  Did you open your inbox this morning to find the City of New York’s guidance on how to implement “Key to NYC”, NYC’s COVID-19 Vaccination Mandate? Go check.  I will wait.  Yep, be sure to check your SPAM and junk mail.  Find it? Neither did I.

Just this afternoon, at about 1:00 PM, the City issued a short summary of the program, some brief FAQs, a single-paged website, and a required poster.  Hopefully, the City will release more information on how this mandate will actually work.  Until then, we will, of course, send you updates as official details are finally released. If you’re not yet familiar with the Key to NYC, an explanation is contained below of what is presently known.

I offer the below guidance (as of the afternoon of August 16, 2021), and an invitation to attend a special HR Confidential Webinar that will take place at 11:00 AM on Wednesday, August 18, 2021. During this Webinar, we will discuss what is and is not yet known about Key to NYC Pass, and how this mandate can be expected to affect your business.  You can register for that HR Confidential Webinar here, or through this link:

https://us06web.zoom.us/webinar/register/WN_fIGp2eqtTvivHZMgllh-fQ

I also invite you to register for the HR Confidential Alert, a monthly newsletter where we provide updates and commentary on employment practices rules, regulations, and best practices.

You can register for the HR Confidential Alert here, or through this link:

https://mailchi.mp/653d3ed5730b/hr-confidential

I recognize that the following guidance is lengthy and leaves many open questions. However, we are doing our best to succinctly summarize the pertinent aspects of the program as it is known today. As always, we are standing by to assist in any way we can.

What is the Key to NYC?
Key to NYC is a new City program that launches on August 17, 20201 and which will be enforced beginning on September 13, 2021. The Key to NYC is not a document, but rather a mandate that certain businesses require proof of vaccination from staff and guests alike as a condition to dining or working inside. In short, Key to NYC is meant to encourage New Yorkers to get vaccinated.

Do the Key to NYC requirements apply to my business?
If you own or operate a restaurant, bar, or club with indoor facilities within the City of New York, then the vaccine mandate applies to your business and your guests. The mandate also applies to businesses that provide on-premises catering services. If a venue has both indoor and outdoor portions, only the indoor portion is covered by the Key to NYC requirements.

Do I have to post anything?
Yes.  You must post the “Vaccination Required Poster for Businesses” somewhere “that is clearly visible to people before they enter your business.” You can find a link to that poster here.

https://www1.nyc.gov/assets/doh/downloads/pdf/covid/posters/covid-19-vaccine-required-poster.pdf

What has the City released already?  What do you expect the City to release?
This afternoon the City announced that businesses must have “a written implementation plan that will be available for inspection,” which includes clear instructions on how the vaccination status of staff and customers will be checked either before or immediately after they enter. We expect the City to release a model plan—similar to the NY Forward Plan or the HERO Act’s Clean Indoor Air templates—which businesses may then follow.  Below is a listing of what has been released by the City:

• This FAQ:
  https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-key-to-nyc-faq.pdf
• This business checklist:
  https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-key-to-nyc-business-checklist.pdf
• And the Key to NYC Department of Health page: https://www1.nyc.gov/site/doh/covid/covid-19-vaccines-keytonyc.page

Regardless of what the City releases further, we are here to help you create a policy that will be crafted to meet your specific business needs. Stay tuned for more information.

How does the Key to NYC vaccine requirement affect outdoor dining?
Though not explicitly stated, the existence of this program means that social distancing protocols must be put back into place in outdoor dining areas. Because the mandate does not apply to outdoor settings, unvaccinated guests are welcome to dine outside wherever possible. As you’ll remember, we effectively moved to a COVID honor system when the vaccine became widely available, but businesses still had to maintain social distancing protocols for unvaccinated guests. Now, because proof of vaccination is required to dine inside, and because we know there will be unvaccinated people outside, our outdoor seating must be properly spaced to maintain social distancing requirements. Until otherwise told, best practices would dictate brushing off and re-implementing those outdoor seating plans from the pre-vaccine days. This old chestnut is back again, just in time for cooler weather!

What spaces are considered “indoors”?
For purposes of Key to NYC, “indoor” spaces are those that have a roof or overhang and three or more walls. However, for purposes of Key to NYC, the following structures are considered outdoors, and operators do not need to check vaccination status:

• Structures on a sidewalk or roadway and entirely open on the side facing the sidewalk, or
• An outdoor dining structure designed for individual parties (such as plastic domes) so long as the dome has adequate ventilation to allow for air circulation.

Whatever happened to masks? Who needs to wear a mask these days?
We strongly encourage everyone to mask up—staff and customers! Masks are incredibly effective at preventing the spread of COVID. That said, unvaccinated guests traversing interior spaces or moving between tables must wear masks, and children under 12, must wear masks when not seated with their families inside or outside.

Wait, how do we know if a child is under 12? Can they eat indoors? 
You are right—unless we ask, we won’t know whether children are, in fact, under the age of 12—and we shouldn’t ask them.  We must trust their parents or caretaker to accurately report the age of their child.  Individuals under the age of 12 may enter Key to NYC establishments without displaying proof of vaccination so long as they wear a face mask, except when eating and drinking, whenever they are unable to maintain six feet of social distance from other people.

After September 13^th, you should ask everyone, adults and children alike, for their vaccination status.  If a child is under 12, we should expect that their parent/guardian will honestly report as much, prompting you to follow the above guidance.

Okay, how do I check vaccination status?
There are several options available for checking vaccine status. These include:

• The physical CDC card issued when a person is vaccinated;
•  New York State’s Excelsior pass; and
• The Key to NYC pass.
• A photo or hard copy of an official vaccination record of a vaccine administered outside the United States for one of the following vaccines: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.

The Excelsior pass also has a business side application that allows users to read the QR codes on the passes and verify their authenticity.

What if I think someone’s proof of vaccination is fake?
This is a valid concern. At this time, we do not have a lot of information about what form fake vaccine documents can or may take, but we know that fraudulent documentation exists, and would be foolish to think they won’t proliferate soon. We believe that businesses will meet their enforcement burden by accepting vaccination proof that “passes the smell test.” If it’s not written in crayon, and if a reasonable person would not doubt its legitimacy, then you should be in the clear.  The City’s Health Commissioner, Dr. David Chokshi has stated that, “a fake vaccination card constitutes fraud and will be prosecuted as fraud by that individual” and that the City “will have recourse for people to report if they are encountering fake vaccination cards.”

If you suspect someone is presenting a fake vaccination card, you may report it by calling 311, report it to the NYS Attorney General by filing a complaint via: https://ag.ny.gov/complaintforms, calling 833-VAX-SCAM (833- 829-7226), or emailing the state Department of Health at [email protected].

That said, if one of your team members has a reasonable suspicion that someone’s document is fake, they should first request a manager’s assistance to diffuse any tension that may arise, and together decide how to move forward. As of right now, you can choose to take a hardline approach or a more lenient one—whatever your approach is, though, you must apply it equally to all.  We suggest that guests who present suspect proof be encouraged to dine outside if possible. Obviously, this information may change, and if it does, we will alert you.

Must everyone be vaccinated?
Yes.  As this mandate is currently understood, all employees and guests in the indoor dining setting must be vaccinated.  Only those who, after engaging in the interactive dialogue, have been granted a reasonable accommodation because of a disability, medical condition, or sincerely held religious belief that prevents them from getting the vaccine, are exempted from the mandate.

These terms, “reasonable accommodation” and “interactive dialogue,” are familiar, why?
They should be in your employee handbook already.  If you have a properly drafted employee handbook and employment practices program, you should already have these policies and forms in place.  If you don’t have these or need help implementing them, please reach out for assistance and register for our webinar, where we will be focusing on these topics.

Unvaccinated persons are a threat to others.  Isn’t that the point of Key to NYC Pass? 
Exactly.  It would seem that the rule is saying that unvaccinated persons pose a risk to others—hence the underpinnings of this mandate.  Thus, shouldn’t we be able to avoid reasonable accommodations (even for those that rightfully deserve them) by classifying unvaccinated persons as a direct threat?  It would seem to be the logical conclusion of this rule, but accessibility rules deem otherwise.  Stay tuned for this crucial legal fine point analysis.

What is the interactive dialogue?
In order to figure out what reasonable accommodations will help an employee; you should engage in an “interactive dialogue.” This means you must talk to your employee about their limitations and what the business can do to help them do their job. The process demands confidentiality when discussing accommodations; reasonable accommodation information may only be shared on a need-to-know basis, may never go in a personnel file, and may not be shared with coworkers.  Co-workers who may need to do something differently as a result of an accommodation may be told of the change required, but not the reasons why the change was made.  Confidential documents, such as medical records, doctors’ letters or notes, and letters from faith leaders may be received and considered during this process.

What does the interactive dialogue look like for guests?
As noted above, traditionally this is the sort of process that would involve a series of forms, confidential documents, conversations, and probably someone from “HR.” We know that will not be possible at the door or via email before a guest’s reservation. However, we think that using good judgment can go a long way in this case. For example, if a guest is visibly pregnant or has a letter from a doctor outlining why they cannot be vaccinated, or if they immediately explain the tenets of their religious observance to your host team, take this information at face value and provide the accommodation. This is an imperfect situation that requires imperfect solutions; our main goal is to prevent any serious fall-out from refusing a guest while navigating equal access, privacy, and public health concerns.  Pick a standard and apply it to everyone the same way, every time.

Sure, that process went great.  How can it go off the rails?
Expect things to be complicated and train your managers in preparation. There will be angry guests whose documents are, in fact, written in crayon, who refuse to cooperate, and who will behave and react badly when this policy is properly enforced. Customers may also treat your staff poorly as they attempt to enforce the mandate, and/or while being escorted off premises due to their failure to comply. Managers must be aware that they will be called on to offer support, diffuse situations, and protect their teams. We’re talking possible SantaCon-Halloween-Yankees World Series Loss levels disorderly; but if you approach each service as though you are expecting roving bands of wasted Santas (and their elves) to pitch a fit at the host stand or the door, then you’re ready.

No one wants to call 911 on an unruly guest, but remember: this is not your mandate, you are not the mayor, and the NYPD technically serves exactly this purpose. Being at DEFCON-3 levels of preparedness means using all the tools in your kit.

The Office of Administrative Trials and Hearings will also be posting a webinar
(https://www1.nyc.gov/site/oath/conflict-resolution/conflict-resolution.page ) setting out best practices for de-escalating disputes between customers and businesses by August 20, 2021.

What does interactive dialogue look like for employees?
Once an employee has completed the “Reasonable Accommodation” request form available in your handbook (we hope) or in your office, schedule a time to discuss their concerns with them. They may provide you with varying forms of proof, from a doctor’s letter or note, to a letter from a faith leader. As we noted above, confidentiality is very important to this process and it is a discussion that requires mutual trust. Once you have spoken with the employee, reviewed their request and any supporting documentation, and weighed the relevant factors, you can determine whether or not to grant the requested reasonable accommodation. Presumably, the accommodation is remaining unvaccinated and continuing to work. No matter the outcome, keep consistent, confidential records as you move through each step, concluding with a documented request approval or denial.

We are here to assist you with exactly this sort of process and can provide additional guidance if needed.

Yep, that was easy too.  Where can the interactive dialogue go wrong with my employees?
You have the power to keep it from going wrong. Listen, be attentive, use good judgment (there’s that phrase again) and keep diligent records. Familiarize yourself with the guidelines and use the resources available to you. Talk over the process with your lawyers (that’s us), and we will help ensure compliance with local, state, and federal law. Done correctly, the best possible outcome is that you lose an employee because their request is denied, and they still refuse the vaccine, and you are protected from unnecessary litigation exposure. This is a manageable hurdle. Done incorrectly, you open yourself to claims for wrongful termination, discrimination, and claims of disparate treatment.

What are reasonable accommodations for guests or employees who refuse to get the vaccine for other reasons?
None.  Only those that are unable to get the vaccine because of a disability, medical condition or sincerely held religious belief should be granted reasonable accommodations.  Those that simply refuse to get the vaccine because they choose not to get it—for whatever reason—are afforded no accommodations. This may mean denying entry and/or service to guests, and suspending (or terminating) employees, who refuse to get the vaccine.

Can you test out of the vaccine requirement? Can I show you a negative test if I am a guest, or be regularly tested if I am an employee?
As of the afternoon of August 16, 2021, in the City’s FAQs, it appears that there is no “test out” option.  Stay tuned as this may change between today and September 13^th.

What are reasonable accommodations for guests who claim that they are unable to get the vaccine?
Here, you need to use your best judgment.  Who is the arbiter if your guests are telling you the truth?  Until otherwise instructed, just like vaccination cards, trust your guests to tell you the truth.  Use your best judgment and discretion and train your staff for the best and worst-case scenarios. Until the City releases its exact guidance, here are four scenarios we have crafted:

1. Educate and buy time.  Begin by simply asking your customers if they are vaccinated and enforce your rules and policies as you have been—equal-handedly.   Do not ask for documentation, but inform patrons that beginning on September 13th, you will require proof of vaccination. If someone volunteers that they are unvaccinated, we must provide unvaccinated guests seating within a dining space (regardless if indoors or not until September 13th and then outdoors only) that allows for social distancing (or barriers between tables), and ensure that they remain masked up at all times unless they are eating or drinking. Wait for additional guidance from the City and adjust your process accordingly.
2. Require proof of vaccination starting now (or any time before September 13th). Validate vaccination status with a physical vaccination card, a photo of a vaccination card, or a government-provided digital record. In this scenario, unvaccinated guests without medical or religious exemptions must either be seated outside (socially distanced and masked up) or refused/denied service/entry altogether.  Take guests who claim an exemption at face value and seat them indoors or outdoors, socially distanced and with masks.  Apply your rules and policies consistently and fairly.
3. Do nothing. Continue to operate as you have been and wait on guidance from the City which should arrive any day now. We will share anything we learn with you as soon as it is announced, along with commentary and implementation assistance.
4. End your indoor dining programs entirely and shift to only outside dining. This option bypasses the need to check vaccine status, and only requires that customers mask up (regardless of status) when using the indoor facilities. This is the most extreme option as of right now but avoids not having to deal with any issues until clear rules and guidance are released by the city.

Be prepared for the backlash that may ensue; there will be angry customers and your managers must be ready to tackle the more difficult moments in support of your line employees. Give notice of the vaccine mandate in advance on your website, social media outlets, and in your window. And, of course, make sure your employees are vaccinated as well.  Meaning, you shouldn’t go live immediately, give everyone some notice as to when you are going to start implementing the policy.

What about my employees; what are reasonable accommodations for them?
Much remains unclear, but this is what we know.  The City could say it is as simple as weekly testing plus masks, or the rules may be more draconian.  Regardless, you can bet it includes a mixture of regular testing, facial coverings, socially distanced workplaces, PPE, and physical barriers that provide additional protection when social distancing is not feasible.  For some of your positions this is possible (e.g., move a prep cook who is wearing a mask and PPE to a different station so that she can be socially distanced from others), but for others, it is not (e.g., a server).  Because the logical conclusion for our industry is that some will lose their jobs because no accommodation can be found (a server’s job cannot be altered to allow for social distancing without causing an undue hardship) we must make sure that any adverse employment decisions are thoroughly documented and considered equally to other accommodation requests.

What happens if I fail to properly engage in an interactive dialogue with my employees or guests concerning this vaccination mandate?
You can be exposed to unnecessary lawsuits and claims of discrimination brought against you by your guests and/or employees, as well as oversight and audits from various city, state, and federal agencies.  If anything, this pandemic has taught us that while we continue to hope and pray for the best, we should absolutely prepare for the worst.  Let us help you make sure that your policies are not only compliant with the City’s eventual rules, but serve as an effective shield or sword to defend and win anything that may come your way.

Who will be enforcing this program and what are the penalties for non-compliance?
The City has stated that business owners who fail inspections to this mandate will be fined and that Businesses that violate the rules will be subject to an escalating scale of fines starting with $1,000 for a first offense, beginning on Sept. 13.

Per the NYC FAQ, inspectors from various City agencies will be enforcing these requirements. As of right now, the only document inspection requires you to have on hand is a “written record describing how you will verify proof of vaccination for employees and patrons.” This is, of course, subject to change and we will update you if it does.

What do I do with the records?
Any records you receive must be kept in a secure place that only you have access to. Set up a secure storage system where only those that need to, can access the files. To be clear, in the parlance of pre-Dropbox days, this information must be kept in a locked room (which a few people have the keys to) inside of a locked file cabinet (to which even fewer hold the keys), segregated by employee, and separate from their personnel files. The same goes for records received from guests, keep them segregated by date.

What else should I be worried about?
Covid sick pay.  Depending on your size, under the New York State Emergency COVID-19 Paid Sick Leave Law, your employees could be eligible for up to five to fourteen days of paid sick leave—and they could be eligible for up to three separate periods of COVID-19 Sick Leave.  However, employees are not covered if they visit an area on New York State’s travel advisory for personal travel.  Will those who opt to test out (if possible) of the vaccine mandate and later get COVID, will they be eligible for COVID Sick Leave?

There is still a lot we don’t know.  This could be stale by the time you read it.  As I said, we will post breaking news as it is warranted, and will continue our discussion on Wednesday, August 18, 2021, at 11 AM at the special HR Confidential Webinar.  Here’s that registration link again:

https://us06web.zoom.us/webinar/register/WN_fIGp2eqtTvivHZMgllh-fQ

Until then, do not hesitate to reach out with any questions or concerns.

Thanks again,

Lee

Links from this email:
Key to NYC Department of Health Website:
https://www1.nyc.gov/site/doh/covid/covid-19-vaccines-keytonyc.page

“Vaccination Required” poster for businesses:
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/posters/covid-19-vaccine-required-poster.pdf

Key to NYC FAQ:
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-key-to-nyc-faq.pdf

Key to NYC Business Checklist:
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-key-to-nyc-business-checklist.pdf

Conflict-Resolution webinar from the Office of Trials and Hearings:
https://www1.nyc.gov/site/oath/conflict-resolution/conflict-resolution.page