Who Holds the Vaccination Key? “Key to NYC Pass” Vaccination Mandate Goes Live August 16, 2021

Originally Published : August 6, 2021

Dear HL Clients, Friends and Family,

Many of you have reached out since New York City announced the “Key to NYC Pass”, which requires proof of COVID-19 vaccination for employees, guests, and vendors in the indoor dining setting. The new mandate takes effect on August 16, 2021, also known as ten days from today.   I had fully expected the Mayor to enact a mask mandate before a vaccine mandate, but here we are.  And as has been the case more often than not since the pandemic began, our government announces a rule or mandate without providing much in terms of details or guidance. Nothing different this time, I’m afraid.

Some of you had already instituted vaccination mandate policies (or are presently thinking about doing so), and that is completely acceptable and even encouraged from a public health standpoint.

As a reminder, if you do choose to do this (or have already), you must have your policy in writing together with a reasonable accommodation policy for those who can’t (not choose not to) get the vaccine. Take note, a common theme through today’s message will be “reasonable accommodations” and the “interactive dialogue”. Also, I ask you, if you are mandating that your staff be vaccinated, shouldn’t you be demanding the same of your customers?

For now you should keep the lines of staff communication open, so that expectations are clear for when the city does finally answer the necessary questions about how this new mandate will be enforced.  When we have final answers, so will you.  But for now, let’s talk about what we know and what we don’t.

The Known Knowns

  • The vaccine mandate will be phased in over the next couple of weeks, with the final details of the policy expected to be published and implemented by the week of August 16, 2021—just ten days from now.
  • Enforcement of this new mandate will begin the week of September 13, 2021.
The Known Unknowns

  • Reasonable accommodations. Under federal, state and city law, equal access to jobs and services demands that businesses afford reasonable accommodations to employees and guests who cannot meet an otherwise legal mandate or requirement. Relevant to today, reasonable accommodations are only afforded to those who have a sincerely held religious belief, medical condition, or disability that prevents them from getting the vaccine. Before announcing the Key to NYC Pass, the City instituted a vaccine requirement for all of its employees, but with a regular “test out” option. Will that same standard be applied here? Can anyone opt to show a test instead of proof of vaccination or is it only for those that have been afforded a reasonable accommodation after engaging in the interactive dialogue?
  • Proof of vaccination. What is proof? The vaccination card? A copy of the original? Excelsior Pass? What about a doctor’s letter/note? A medical record? Docket, New Jersey’s answer to the Excelsior Pass? Will you be shielded from liability for claims of identity theft if you misplace a vaccination record that contains an employee’s (or customer’s) social security number and address?
  • What about Children under 12? Children under 12 are still ineligible for the vaccine. How will this be handled? This is a necessary consequence of the rule but the City stated that it does not intend to separate children who are ineligible for the COVID-19 vaccination from their vaccinated parents. Are we going to be checking our guests’ birth certificates?
  • Enforcement and Penalties.  The City has stated that business owners who fail inspections to this mandate will be fined. That is literally all we know. Which agency will be enforcing the rule? What are the monetary penalties? How do you show compliance? How do you show proof of a properly-granted reasonable accommodation after engaging in the interactive dialogue without disclosing confidential information about your employee’s or guest’s religious beliefs and/or medical condition? Are you shielded from liability if you do so?
The Unknown Unknowns

  • Alphabet Soup. At the onset of the pandemic did you predict that the SLA would be the social distancing and facial covering police? Will they be doing the same for the Key to NYC Pass? Until we know otherwise, we must expect and plan for it. If not the SLA, will it be the NYPD? FDNY? DOB? DOH? DOT? DCA? DOL? NYCCHR? NYSDHR?
  • Enforcement. Just as businesses decided they were going to be autonomous zones during the height of the indoor capacity requirements, I easily imagine a scenario where a business decides to “grant” all of its employees and guests “reasonable accommodations” to skirt the rules. Who will be the arbiter of what is reasonable or not?
  • Social Media. Are you prepared for the social media onslaught that will come after you terminate an employee or deny seating to those without proof of their vaccinations?
  • Unemployment. Will employees who are necessarily terminated (or suspended without pay or put on a leave of absence) be eligible to receive unemployment?
  • Liability. If employees or guests get sick after this mandate, and they can prove that you failed to follow the yet-to-be-released guidelines, are you exposed? Is compliance a shield to claims of liability? We are charting a brave new legal world here.

What You Can Do Now

For now, until we know exactly how the City will answer the questions laid out here (and discussed in further detail in a recent interview I gave to Plate, available here), we recommend the following:

  1. Open the lines of communication with your staff now, in writing, and at your staff meetings. Let them know that beginning August 16, the City will require proof of vaccination for all employees, guests, and vendors. Explain that once the City has released its guidelines that you will be strictly enforcing them and that you will release additional information and guidance as it becomes available.
  2. Encourage staff members to show you proof of their vaccination now (cards, Excelsior Pass, etc.). Let them know you will be keeping a copy 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.
  3. Alert your employees that they must secure their first vaccination appointment by August 16. Ask staff members to bring proof of their second appointment (if applicable) as it will be given to them at the time of their first shot.
  4. Help your employees get vaccinated now. Direct unvaccinated team members to the Vaccine Finder (https://vaccinefinder.nyc.gov/) site to locate convenient locations near work or their homes.
  5. Be prepared to help those whose first language is not English through this process.
  6. Technically, since March 21, 2021, under New York State Law, you are required to pay your employees (up to 4 hours per shot) if they get vaccinated during work hours. So why not pay them anyway? Let your employees know this and set up a system to coordinate it with your bookkeeper and payroll company. These extra hours are not included in overtime calculations, so make sure it gets recorded as a separate line item on the paystub.
  7. This one is optional, but let your staff know that if they react to getting the vaccine (as so many of us did), you can offer an extra sick day for the day after the shot. Again, this one is not required by law, but evidence shows that this is a good tool to encourage compliance.
  8. Get ready for the City’s mandate.  As I discuss in further detail in my Plate interview, you should tackle all of the operational concerns now, before you mandate anything. Who on your staff will approve valid vaccine cards? Where will they be stored and maintained? What is your reasonable accommodation process and how will you engage your staff (and/or guests) in the mandated interactive dialogue? How will you follow up with staff who are scheduled to get vaccinated? How will you even-handedly, for your best and worst employees, enforce and apply your rules? Can your operations handle a sudden loss of staff due to vaccination non-compliance?
  9. Implement your Airborne Infectious Disease Exposure Prevention Plan as required by the HERO Act now. Don’t let yourself be exposed to fines because you didn’t fill out the form. You can find a model plan (similar in process to the NY Forward Plan) here.
  10. Stay engaged and tuned in. Policies, rules, and even best practices sometimes change on a day-by-day basis.  Subscribe to HR Confidential our Employment Practices newsletter; read the newspaper and watch the news, and ask questions and seek advice.

It’s been almost SEVENTEEN months since I sent out my first pandemic related alert and since then, even during our darkest hours, I have said and will continue to say, we are all in this together, but now I add to it: the only way out is together. So remember, don’t hesitate to reach out with any questions or concerns, we are here to help.

I will also take this time to introduce Chloe Brownstein, who joined the Employment Practice this August. A recent graduate of Brooklyn Law School, Chloe spent a decade working in the hospitality industry. Before starting law school, she was the Kitchen Manager Del Posto Restaurant for seven years. You can reach Chloe at [email protected].

So with that, continue to mask up! We are not suggesting a mask mandate (until otherwise required), but masks do limit the transmission of COVID-19 and other airborne illnesses. Don’t forget that unvaccinated staff, guests, and vendors are still required to wear masks.

I promise to be back with more once we know more, and we are, as always, here to provide any assistance you might need in the interim and thereafter. We are all in this together, and the only way out is together.

Yours in solidarity and compliance,