NYC Vaccine Requirements in Effect for Certain Indoor Activities: Executive Order “Key to NYC” | Davis Wright Tremaine LLP
New York Mayor Bill DeBlasio Executive Decree No. 225 (titled “Key to NYC”) requires workers and customers to present proof of at least one dose of a COVID-19 vaccine cleared by the Food and Drug Administration or the World Health Organization before entering in some indoor environments. Key to NYC vaccine requirements extend to full-time or part-time employees, interns, volunteers or contractors; and customers 12 years of age and over entering indoor entertainment and recreation venues, indoor food services and indoor gymnasiums and fitness establishments covered by the Order.
The Key to NYC requirements went into effect on August 17, 2021, and the City will begin enforcing the law on September 13, 2021. The City issued Advice on the equitable implementation of the Key to NYC Pass and Faq.
Importantly, the New York Key requirements are limited to interior parts of entities having a roof or overhang and three or more walls. Indoor spaces in these circumstances expressly exclude structures on sidewalks or roads that have an open side facing the sidewalk or outdoor catering structures designed for parties where they are sufficiently ventilated.
Additionally, clients under 12 are not required to show proof of vaccination as long as they wear a face mask (except when eating and drinking) whenever a social distancing of six feet cannot. not be maintained.
Proof of vaccination
Proof of vaccination can be established by either a CDC vaccination card; the New York City COVID Safe Pass; New York State’s Excelsior Pass; or the official COVID-19 vaccination record from the jurisdiction, state or country where the vaccine was received. Personal identification1 should also be reviewed by covered facilities for anyone who appears to be 18 years of age or older to confirm that they match the information on the proof of vaccination.
If a company already maintains identification documents for its employees or customers, identity verification is not required for these individuals.
Which entities are covered?
A covered room is any location used for indoor entertainment and recreation, indoor catering services and indoor gymnasiums and fitness facilities as defined below (excluding spaces in residential or office buildings). which are limited to residents, owners or tenants of this building). Purely commercial establishments are not covered by the Key to NYC requirements.
Indoor entertainment and recreation areas include indoor portions of the following locations:
- Adult entertainment;
- Botanical gardens;
- Bowling lanes;
- Commercial venues for events and parties;
- Congress centers and exhibition halls;
- Indoor play areas;
- Movie theater ;
- Museums and galleries;
- Music or concert halls;
- Performing arts theaters;
- Professional sports arenas and indoor stadiums;
- Billiard and billiard rooms;
- Zoos; and
- Other recreational play centers.
Interior catering services include the interior parts of catering establishments, including:
- All indoor dining rooms in catering establishments that receive alphabetical ratings as described in article 81.51 of the Health Code;
- Companies operating indoor rest areas in food courts;
- Catering establishments which provide food within its premises; and
- Any interior portion of an eating establishment regulated by the New York State Department of Agriculture and Markets that provides food for domestic consumption on-site
Businesses that only offer take-out or delivery are excluded from coverage under the Key to NYC. Additionally, if a business only offers take-out, delivery, or alfresco dining, any indoor dining furniture should be removed or blocked so that it cannot be used.
Indoor gym and fitness facilities include:
- Interior parts of independent and hotel gyms and fitness centers;
- Gyms and fitness centers in higher education institutions;
- Yoga / Pilates / barre / dance studios;
- Boxing / kickboxing halls;
- Fitness training camps;
- Indoor swimming pools; and
- CrossFit or other plyometric boxes and other facilities used to organize instructor-led group fitness classes with at least two participants.
Persons exempt from the vaccination mandate
Proof of vaccination is not required for the following persons, provided a face mask is worn when a distance of six feet is not maintained inside a covered room:
- People entering for a quick and limited purpose (such as using the washroom, placing or collecting an order);
- A non-resident performer who is not regularly employed by the covered entity while in a covered room for performance purposes;
- A non-resident professional athlete / sports team entering indoor premises as part of their regular employment for competitive purposes; and
- A non-resident person accompanying an entertainer or professional athlete / sports team to a covered room as part of their regular employment as long as the performer or professional athlete / sports team is performing or competing in the covered premises.
What must covered entities do to comply with the New York Key?
In addition to requiring proof of vacation, covered entities must prepare a written plan for the implementation and enforcement of Key to NYC requirements. Covered entities should also prominently display a sign alerting customers to the vaccine requirement and specifying that employees and customers should be vaccinated. A sign template is available here, or a covered entity can create their own sign, provided the sign is at least 8.5 “x 11”, uses a 14 point font, and contains text provided by the Department of Health and Mental Hygiene of New York City.
Covered entities should heed guidelines from the New York City Human Rights Commission advising entities that they cannot treat customers or employees differently because of their race, national origin, disability, gender, religion / belief, age, or any other characteristic protected by New York law. City Human Rights Act. In addition, covered establishments should be aware of their obligation to provide reasonable accommodation to customers who are unable to show proof of vaccination due to a disability and to employees who are unable to show proof. immunization due to a disability, pregnancy, religious belief or their status as a victim of domestic violence, criminal harassment or sexual offenses.
Companies must then engage in a cooperative dialogue on this matter to see if a reasonable accommodation is possible. Reasonable accommodation is not required if it would pose a direct threat to customers or employees of the business or otherwise place undue hardship on the business.
Consequences of non-compliance?
As of September 13, 2021, Covered Entities will be subject to Key to NYC enforcement actions, including increased fines for violation, as each case where a Covered Entity does not verify the immunization status of a individual constitutes a violation. An initial violation is punishable by a fine of at least $ 1,000.
If a subsequent violation occurs within one year of the initial violation, a fine of at least $ 2,000 will be imposed. Additional violations will be subject to fines of at least $ 5,000 if the additional violation occurs within one year of the previous violation.
Covered entities should, insofar as they have not already done so, prepare their written protocol and train their employees:
- (i) On their obligations to request proof of vaccination;
- (ii) What constitutes proof of vaccination;
- (iii) How to navigate the circumstances in which customers refuse to comply; and
- (iv) How to engage in a cooperative dialogue with clients who are not vaccinated due to a protected feature covered by the NYCHRL.
It is important to note that covered entities should take these steps well in advance of the September 13, 2021 application date so that their employees know how to comply with the new law. The City will welcome webinars on key NYC guidelines and resources to help your business, as well as a coaching on conflict resolution to help businesses manage these issues.
1 The identification must contain the name of the individual and a photo of the individual; or the person’s name and date of birth. Companies should then compare the name and photo or date of birth with those displayed on proof of vaccination.