NYC Business Owners Must Accommodate the “Key to NYC” Vaccine Mandate

Written by: Joseph A. Keane, Esq.

New York City Mayor Bill De Blasio’s Emergency Executive Order 225, otherwise known as the “Key to NYC” vaccine mandate, took effect on August 17, 2021, to combat the highly transmissible Delta variant of COVID-19. In a continuing effort to mitigate the spread of COVID-19 and protect against severe illness, De Blasio ordered covered entities to prohibit employees and patrons from entering covered premises without first presenting proof of vaccination and identification bearing the same information as the proof of vaccination. Enforcement began on September 13, 2021 with inspectors from various City agencies visiting covered entities.

For purposes of the “Key to NYC” mandate, a covered entity is any entity that operates one or more covered premises except for schools, childcare programs, senior centers, and community centers. A covered premises is any location in a residential or office building used for indoor entertainment and recreation, indoor food service, or indoor fitness.

The New York City Commission on Human Rights (the “Commission”) is charged with enforcing one of the most comprehensive civil rights laws in the United States, the New York City Human Rights Law (“NYCHRL”). Navigating the NYCHRL under the best of circumstances requires business owners to maintain a heightened awareness of their business practices to remain in compliance. The Commission has recently issued guidance on how to navigate the NYCHRL in conjunction with the requirements of the new “Key to NYC” vaccine mandate.

The Commission has advised that to comply with the NYCHRL when implementing the new law, business owners:

1. 1. 1. Cannot treat customers or employees differently because of their age, immigration status, color, disability, gender, gender identity, marital status, national origin, pregnancy, race, religion/creed, sexual orientation, or status as a veteran or active military service member.
      2. Must provide reasonable accommodations to customers who need them because of a disability.
      3. Must provide reasonable accommodations to employees who require them because of a disability, pregnancy, religious belief, or their status as a victim of domestic violence, stalking, or sex offenses.

If a customer is unable to show proof of vaccination due to disability, the business owner must engage with them in a cooperative dialogue to see if a reasonable accommodation is possible. For example, a customer could purchase food for take-out, dine outside of the covered premises, join a virtual or outdoor exercise class, or speak with a representative over the phone. If a customer cannot show proof of vaccination and is not exempt on the basis of disability, they are not entitled to a reasonable accommodation. If a reasonable accommodation poses a direct threat to other customers or employees, or would impose an undue hardship on the business, the business owner is not required to accommodate the customer.

Similarly, if an employee is unable to show proof of vaccination due to disability, pregnancy, religious belief, or their status as a victim of domestic violence, stalking, or sex offenses, the business owner must engage with them in a cooperative dialogue to see if a reasonable accommodation is possible. For example, an employee could work remotely, perform their job duties in isolation from other employees and customers, or work outside of the covered premise. Again, if a reasonable accommodation poses a direct threat to other employees or customers, or would impose an undue hardship on the business, the business owner is not required to accommodate them. Under the NYCHRL, employees are only entitled to a reasonable accommodation due to disability, pregnancy, religious belief, or their status as a victim of domestic violence, stalking, or sex offenses- any other reason for not presenting proof of vaccination is not to be accommodated.

Now that enforcement of the mandate has begun, business owners must be mindful that the penalties for noncompliance with the “Key to NYC” mandate are stiff. The first violation is a fine of not less than $1,000, a second violation in a 12-month period is a fine of not less than $2,000, and any subsequent violations within a 12-month period are fines of not less than $5,000. To avoid these fines and potential lawsuits, business owners should assess and update their policies and procedures to be compliant with both the “Key to NYC” mandate and NYCHRL.

Hall Booth Smith, P.C.’s labor and employment attorneys are available to answer any questions you may have on this or other employment law issues.

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