New York City has taken a sweeping approach to help contain the spread of the Delta variant through its “Key to NYC” program, becoming the first U.S. city to do so. With enforcement of “Key to NYC” to begin on September 13, 2021, employers in New York City should begin to make the necessary adjustments to ensure they are in full compliance with the mandate. While the program was announced earlier this month, a new order, Executive Order No. 226, was recently issued by Mayor Bill de Blasio on August 20th, which superseded some provisions of Executive Order No. 225, issued on August 16th.
- Applicability – Determine whether your business has any covered premises.
“Covered premises” under the program are defined as any location used for the following purposes: indoor entertainment and recreational settings, indoor food services, and/or indoor gyms and fitness settings. If your business does not include any of these covered premises, this program would not be applicable to your business.
- Vaccination Proof of Employees – Verify proof of vaccination for all employees.
Employees (full or part-time) may not enter a covered premise without showing proof of vaccination. This also includes interns and volunteers, if applicable.
- Written Policy – Create a policy detailing your protocol for enforcement.
A policy needs to be available for inspection upon request by a City Official. This written policy should describe your protocol for the enforcement of this program (including your protocol for verifying the vaccination and identification for incoming patrons and contractors).
- Poster – Post the required sign in a conspicuous place.
The poster, which alerts incoming patrons of the vaccination requirement, needs to be posted in a conspicuous place (e.g., a front entrance door). The poster found on the nyc.gov website can be used, or you may use your own sign that must be at least 8.5 inches by 11 inches with 14-point font.
Violations of the program may result in a fine of not less than $1,000 for the first violation, a fine of not less than $2,000 for a subsequent violation within twelve months, and a fine of not less than $5,000 for any subsequent violation within a twelve month period from the second. Additionally, the NYC Commission on Human Rights issued guidance on August 17, 2021 concerning the “equitable implementation” of the program. This guidance reminds employers of an employee’s right to a reasonable accommodation, and the employer’s duty to engage in an interactive process with the employee.
As expected, there have already been numerous lawsuits filed in relation to this new program. Notably, one suit was filed against Mayor de Blasio by a group of plaintiffs, that include restaurant owners, in an attempt to block the mandate. White and Williams will continue to monitor any case developments and post all relevant updates as they become available.