New York City Vaccine Requirements Create Significant Compliance Hurdles for Covered Retailers

On Aug. 16, New York Mayor Bill de Blasio issued Executive Order 225 (the “Order”) and related guidance regarding the “Key to NYC” vaccination requirements for nearly all patrons, employees, interns, volunteers, and contractors entering indoor dining, entertainment, recreation, and fitness settings.

Under these requirements, all individuals age 12 or older must show proof that they've received at least one dose of an approved COVID-19 vaccine before being admitted to certain covered indoor facilities, except for those entering for a quick and limited purpose of less than 10 minutes, such as using a bathroom. The New York City guidance also states that businesses “must check identification of anyone appearing to be 18 years of age or older.”

This identification verification requirement may come as a surprise to some businesses as the focus of de Blasio’s announcements on the mandate have all focused on individuals showing proof of vaccination only. These requirements were the first of their type to be announced in the country.

Written Policies for COVID-19 Vaccine Protocol

Covered businesses must develop a written policy describing their protocol for implementing and enforcing these requirements and also must post a notice (such as the NYC sample notice) in a conspicuous place that's viewable by prospective patrons prior to entering the establishment.

Although the guidance and enacting order don't specify the precise contents of what these plans need to include, businesses should consider including details in these policies on who will be responsible for each verifying the vaccine status of both employees and patrons, how these activities will be completed, and how any records collected will be stored. Businesses should promptly determine who will be responsible for checking vaccination status and then conducting training for those individuals on what processes they should follow and how to minimize any conflicts with patrons refusing to show proof of vaccination or identification.

In addition to checking proof of vaccination, the NYC guidance says businesses must view identification documents that allow the company to confirm that the person requesting entrance is the same person reflected on the proof of vaccination.

Exceptions and Accommodations to COVID-19 Vaccine Mandate

Businesses also need to understand that certain individuals may be unable to be vaccinated for various reasons. For patrons unable to be vaccinated due to a disability, businesses must engage in a cooperative dialogue and consider if there's a reasonable accommodation that would enable them to access the business’s goods or services without posing a direct threat or undue hardship to the business. Businesses also need to follow this process for employees, including employees unable to be vaccinated due to disability, pregnancy, religious belief, or their status as a victim of domestic violence, stalking or sex offenses

It depends on the business, but reasonable accommodations can take many forms. For patrons, a customer could purchase food to take with them, join a virtual exercise class, or speak with a sales representative by phone. For employees, employers can consider whether an employee can (a) work remotely; (b) work outside the indoor portion of the premises; or (c) work in an area separated from other people. A covered business may require documentation from an employee requesting an accommodation, but also needs to issue a final written determination explaining whether any accommodation will be provided.

The requirements took effect on Aug. 17, and New York City inspectors will begin enforcing these requirements, including potentially issuing fines, on Sept. 13. Therefore, businesses should take prompt steps to ensure they have an appropriate process in place, including reaching out to qualified counsel if necessary.

Daniel A. Kadish represents and counsels employers facing employment disputes and has been a leader on Morgan Lewis’ COVID-19 compliance and counseling team. Leni D. Battaglia defends employers in courts and tribunals around the United States and develops litigation-avoidance strategies for clients across industries, including financial services, technology, retail and e-commerce, hospitality, and entertainment. He serves as co-leader of Morgan Lewis’ fashion and luxury brands team.