New York City (NYC) released its guidance, the Implementing Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination in the Workplace (“Order") and additional resources on its vaccination mandate for private businesses with workers in NYC. We previously discussed NYC’s announcement of this vaccination mandate here.

And in other news, we have litigation updates relating to the OSHA Emergency Temporary Standard (ETS) applicable to private employers with 100 or more employees and the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) applicable to Medicare and Medicaid certified providers and suppliers.

So, read on.

NYC Guidance and NYC Commissioner of Health and Mental Hygiene’s Order

Here are important take aways for employers.

Reason for Implementation

According to the Order, it is “necessary for the health and safety of the City and its residents when urgent public health action is needed to protect the public health against an existing threat and a public health emergency has been declared.”

Businesses Subject to the Order

The Order only applies to workplaces in NYC. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.

Businesses that employ more than one worker in NYC or maintain or operate a workplace in NYC are covered by this Order. Individuals who are self-employed or sole proprietors are not covered by the Order unless they work at a workplace, or interact with other workers or the public in-person.

For more information see NYC’s FAQ which cover this very issue and provide specific examples.

Workers Subject to this Order

The Order covers full or part time employees, staff members, interns, volunteers, contractors, self-employed individuals, employers, or sole practitioners working in person in NYC at a workplace.

It does not apply to:

Remote workers
People who do not interact in-person with co-workers or the public
Individuals who enter the workplace for a quick and limited purpose
Non-NYC residents who are performing artists, college or professional athletes (or individuals accompanying them) not required to be vaccinated per the Key to NYC program

Key Requirements:

Proof of Vaccination: Beginning December 27, 2021, NYC workers must provide proof of at least one vaccination dose against COVID-19 before entering a workplace.

They must provide proof of the second dose, if applicable, within 45 days.
Exclude Workers Not Vaccinated: NYC businesses must exclude from the workplace workers who have not provided proof of vaccination status, subject to medical or religious accommodation.
Maintain Records of Vaccinated Status. Businesses must verify workers’ proof of vaccination and maintain it in one of the following ways:
- Keep a copy of each worker’s proof of vaccination;
- Maintain a record of proof of vaccination showing the worker’s name, vaccination status, due date of second dose, if applicable; or
- Check the proof of vaccination before permitting the worker into the workplace and keep a record.
- For contractors, businesses are not required to keep a record of their vaccination status if the contractor’s employer confirms the contractor is vaccinated. In that case, the business must still maintain a record of its request and confirmation.
By December 27, 2021, employers must affirm on this form created by the NYC Department of Health and Mental Hygiene that it has complied with the NYC vaccination requirement and post in a conspicuous location.

Reasonable Accommodations

Individuals subject to the Order may request religious and/or medical accommodations to the vaccination requirement by December 27, 2021, which “begins the reasonable accommodation process.”
The FAQs clarify that workers may not qualify for an exemption based upon their social or political beliefs.
Businesses may allow those with a pending accommodation request to come into the workplace.
According to the reasonable accommodation guidance, employers may deny accommodations that impose an undue hardship based upon factors identified by EEOC guidance such as:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility making the reasonable accommodation;
- the number of persons employed at this facility;
- the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
- the impact of the accommodation on the operation of the facility.
NYC provides a checklist which is here to use when undertaking the reasonable accommodation process. According to the FAQs, “If an employer chooses to follow this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.”
Businesses must keep records of reasonable accommodations which identify the date the accommodation was granted, the basis for doing so, and any supporting documentation provided in support of the requested accommodation.

Penalties for Noncompliance

Businesses out of compliance are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

Resources

The NYC guidance can be found at COVID-19: Vaccination Workplace Requirement - NYC Health

The implementing Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination in the Workplace, is published as well as helpful Frequently Asked Questions and Guidance on Accommodations.

Litigation Updates on Federal Vaccination Mandates

OSHA Emergency Temporary Standard (ETS)

As previously reported, we are waiting for the 6th Circuit Court of Appeals to decide the outcome of OSHA’s Motion to Dissolve the Stay of the OSHA ETS, which would require private employers with 100 or more employees to mandate COVID-19 vaccinations or weekly testing of employees.
So far, the 6th Circuit has denied the petition requesting that all 6th Circuit judges, rather than the typical panel of three judges, make the decision. The Court stated:

In a case as important, accelerated, and briefing-filled as this one, however, gathering all hands on deck would have strained the resources of the sixteen active judges, requiring each of us to review the voluminous record and the relevant underlying legal doctrines. What’s more, it would have done so for no discernable purpose: the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.

This court order can be found here. https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0283p-06.pdf.

CMS Vaccination Mandate

First, for background, the IFR—Interim Final Rule—is a government mandate issued by the Centers for Medicare and Medicaid Services (CMS) which requires health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated. Our prior discussion about the IFR can be found here.
On November 29th a federal district court in Missouri granted a preliminary injunction against the government temporarily stopping enforcement of the IFR in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. See our summary of this here.
On November 30th, a federal district court in Louisiana granted a preliminary injunction against the government also temporarily stopping enforcement of the IFR. See our prior summary here. This lawsuit was brought against the government by 14 additional states Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia. The court applied this injunction nationwide except for the 10 states already subject to the November 29th injunction from the Eastern District of Missouri.
As a result, CMS stated on its FAQ guidance: “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”
But then on December 15th, the 5th Circuit Court of Appeals reviewed the November 30th decision of the federal district court in Louisiana and issued an order stating the lower court should have limited its stay to the 14 states that brought the action, and not nationwide. The 5th Circuit’s order can be found here.
What does that mean? We can assume that Medicare and Medicaid certified providers and suppliers not in the states identified above may be subject to the CMS IFR. We will need to see CMS’s position. Confer with your counsel and keep watching this blog as we are on this!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.