As explained in our previous Client Alert, effective tomorrow, New York City will require individuals to show proof of vaccination in order to participate in indoor entertainment, recreation, dining and fitness.
This morning, the Mayor issued Emergency Executive Order Number 225 implementing the “Key to NYC” Program, and the City issued related FAQs. Though further updates to the FAQs are expected within the week, below we summarize key requirements for covered businesses.
Businesses Required to Check Proof of Vaccination
Indoor “food services” businesses are covered (unless they only offer take-out or delivery):
- All food service establishments that are part of the NYC Department of Health and Mental Hygiene’s restaurant grading program that offer indoor dining or beverage service, including:
- Restaurants
- Bars
- Coffee shops
- Night clubs
- Dining establishments in hotels, colleges and universities, and malls
- Cafeterias
- Businesses that operate indoor seating at food courts, including in hotels and malls
- Businesses that provide on-premises catering services
- Grocery stores, food markets, bodegas and other food retailers that are regulated by the New York State Department of Agriculture and Markets if they offer indoor on-site eating areas
Indoor gyms and fitness settings covered:
- Standalone gyms and fitness centers
- Fitness studios including yoga, Pilates, dance, barre, boxing, kickboxing, boot camp, CrossFit and any other place holding group fitness classes for 2 or more participants led by an instructor
- Indoor pools
- Gyms and fitness centers in hotels and in higher education institutions
Indoor entertainment and recreational settings covered:
- Movie theaters
- Music or concert venues and performing arts theaters
- Adult entertainment venues
- Casinos
- Botanical gardens
- Commercial event and party venues
- Museums and galleries
- Aquariums and zoos
- Professional sports arenas and indoor stadiums
- Convention centers and exhibition halls
- Bowling alleys, arcades, indoor play areas, pool and billiard halls
- Other recreational game centers
Indoor dining, entertainment and fitness settings in residences or offices are not covered when they are available only to residents or office staff. Similarly, indoor dining, entertainment and fitness settings in pre-K through 12 schools, child care programs and senior or community centers are excluded from the Key to NYC requirements.
Individuals Subject to Proof of Vaccination Requirement
The following individuals must provide proof of vaccination to enter a covered business:
- Employees
- Patrons/guests over the age of 12
- Interns
- Volunteers
- Contractors who are residents of New York City
The FAQs indicate that if a venue has both indoor and outdoor portions, only the indoor portion is covered by the Key to NYC requirements. However, that distinction likely only applies to customers – the NYC Small Business Association (SBA) today advised that all employees of a covered business need to be vaccinated. For example, if a restaurant has both outdoor dining and indoor dining, all employees need to be vaccinated - not just those serving the indoor dining section.
Individuals may enter the business to use the restroom without showing proof of vaccination provided they wear a mask and maintain six feet of social distance from other people.
There is currently no exemption or exception for those who claim a need for reasonable accommodation due to a disability or sincerely held religious belief. Though the SBA expects further clarification on the issue, right now the City merely recommends that covered businesses should consider appropriate reasonable accommodations, keeping in mind the purposes behind the Key to NYC Program and public health. That said, businesses should continue to engage in a cooperative dialogue with employees who request accommodation even if they will ultimately be excluded from the workplace.
Individuals Excluded from Proof of Vaccination Requirement
The following individuals may enter a covered business without providing proof of vaccination:
- Individuals placing or picking up a take-out order from a food service establishment
- Vendors, suppliers, individuals making deliveries or pickups and repairpersons
- Individuals under the age of 12 (the City advises that the honor system may be used to verify age)
- Nonresident contractors
- Nonresident performing artists not regularly employed by the covered business while at the business for the purpose of performing, and those accompanying the performing artist
- Nonresident professional athletes/sports teams entering the covered business as part of their regular employment for the purpose of competing and those accompanying the athlete/sports team
Acceptable Forms of Proof of Vaccination
Individuals must demonstrate that they have received at least one (1) dose of an FDA- or WHO- authorized vaccine. Acceptable proof of vaccination includes:
- NYC COVID Safe App
- NYS Excelsior Pass
- Official vaccination record
- CDC Vaccination Card (or photo of same)
- A photo or hard copy of an official vaccination record of a vaccine administered outside the United States that includes the person’s first and last name, date of birth, vaccine type, date(s) administered and the site where the vaccine was administered or persons who administered the vaccine
Required Signage & Plan for Verifying Proof of Vacation
All covered businesses must post the Vaccination Required Poster for Businesses, available here, in a place that is clearly visible to people before they enter the establishment.
Covered businesses must also develop a written implementation plan describing how the business will check the vaccination status of individuals upon entry to the business.
At present there is no explicit requirement that a covered business maintain a record of each individual whose proof of vaccination has been verified, whether customer, employee or otherwise. However, the SBA advises that the FAQs will be updated to include a proof of vaccination log within the next week or so (much like the customer contact tracing and customer/employee health screening logs previously required).
Enforcement
Although the Key to NYC Pass Program goes into effect tomorrow, August 17, businesses will not be fined by the City for non-compliance until September 13, 2021.
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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
