New York City Finally Provides the “Key to NYC” – But Does it Open the Door to All of the Answers?

Seyfarth Synopsis: On August 3, 2021, Mayor Bill de Blasio announced that New York City would be issuing a Mayoral directive that businesses require proof of vaccination for people participating in indoor dining, fitness, and entertainment, effective August 17, 2021.  With endless questions created by the new mandate, and almost no answers offered, businesses were left in the dark about what this new order might require of businesses already straining under demands of the ever-changing COVID landscape. On August 16, 2021, just one day prior to its effective date, Executive Order 225 (“EO”) was finally published.  On August 17, 2021 the City released further guidance on its website (“Guidance”) and in the FAQs, which were updated on August 18, 2021. Dubbed “Key to NYC,” the EO, guidance, and FAQs outline requirements that covered businesses must comply with under the new law. They also provide important information, including which businesses are covered, who must provide proof of vaccination, types of acceptable proof of vaccination, accommodation requirements, and penalties—among other things.  While additional guidance, including a model of the required business plan, is expected in the coming weeks, this alert provides a high-level overview of the requirements covered businesses will need to meet, and discusses some of the questions that remain unanswered.

Effective Date

The mandate went into effect on August 17, 2021, leaving businesses less than 24-hours to determine whether they are covered and how they will comply with the new rules. Fortunately, New York City has announced that enforcement of the law will not begin until September 13, 2021.

Which Businesses Are Impacted

The EO provides that any “covered entity” operating one or more “covered premises” must comply with the “Key to NYC.” A “covered premises” means any location—except in a residential or office building, the use of which is limited to residents, owners or tenants of that building—that is used for indoor food services, indoor gyms and fitness settings, or indoor entertainment and recreational settings.  The EO and the Guidance list applicable businesses:

• Indoor Food Services: includes restaurants, catering halls, event spaces, hotel banquet rooms, bars, nightclubs, cafeterias, grocery stores / food markets with indoor dining, coffee shops, and fast food or quick service with indoor dining.[1] It also includes indoor dining establishments in hotels, colleges and universities, and malls (including food courts), as well as to any on-premises catering services.
• Indoor Gyms & Fitness: includes gyms, fitness centers, fitness classes, pools, indoor studios and dance studios, tennis facilities / bubbles, ice-skating rinks, and indoor fitness classes. This includes gyms and fitness centers in hotels and higher education institutions.
• Indoor Entertainment: includes movie theaters, music and concert venues, museums and galleries, aquariums and zoos, professional sports arenas, indoor stadiums, convention centers, exhibition halls, performing arts theaters, bowling alleys, arcades, pool and billiard halls, recreational game centers, adult entertainment and indoor play areas.[2]

 There are a limited number of exclusions, which include:

• Dining where food is consumed offsite or outdoors only (e.g., fast food/quick service with no indoor eating, delivery only establishments, outdoor only dining, or businesses that remove indoor seating entirely).
• Indoor dining, entertainment, and fitness establishments located in: (1) private residential buildings when those settings are only available to residents and (2) office buildings when those settings are available only to office staff.

Who Is Required to Provide Proof of Vaccination

The requirement to provide proof of vaccination applies to people aged twelve and over, and to all patrons, full- or part-time employees, interns, volunteers, and certain contractors.[3]

Contractors who work with Key to NYC establishments and are residents of New York City are subject to the law’s requirements, but contractors who are not residents of the City are not required show proof of vaccination. The Guidance provides no details as to how a business may obtain proof of residency or whether a business may rely on its vendors to secure proof from its own employees. The Guidance also provides no information on why contractor residence is a relevant factor here.

Individuals excluded from being required to show proof of vaccination include:

• Suppliers and vendors who are making deliveries and pickups, and those who enter a location for the sole purpose of making necessary repairs.
• Those under the age of 12.
• Performing artists who are not residents of NYC and are not regularly employed by the entity; professional athletes/members of professional sports teams who are not residents of NYC but enter a premises for the purpose of competing; and individuals accompanying performing artists or a sports team/professional athlete as part of their regular employment and who are not residents of NYC.

The guidance also allows customers who do not have sufficient proof of vaccination to enter the indoor portion of a business’s premises for quick and limited purposes (for example, to use the bathroom, place a food order, pay a bill, or change in the locker-room).

The Guidance makes clear that the above exempt individuals will need to wear a face mask if they cannot maintain a distance of six feet from other people.

Proof of Vaccination

Oddly, the City is providing the “Key to New York” to persons who are only partially vaccinated, despite federal, state and local guidance that the vaccines do not reach maximum effectiveness until a person is “fully vaccinated.”  To enter a covered establishment, individuals over the age of 12 must demonstrate that they have received at least one dose of a vaccine[4] authorized by the Food and Drug Administration (“FDA”) or the World Health Organization (“WHO”).[5]

The City’s guidance provides the following acceptable forms of proof of vaccination:

• NYC COVID Safe App
• Excelsior Pass or Excelsior Pass Plus
• A hard copy or photo of a CDC Vaccination Card
• NYC Vaccination Record
• An official immunization record from outside NYC or the U.S.[6]

The City also mandates that identification be checked at the same time as proof of vaccination for anyone appearing to be 18 years of age or older (excluding employees or members if identity of the person is known). Identification includes either the name and photo of the individual or the name and date of birth of the individual, and must be matched with the information on the proof of vaccination. Examples of acceptable forms of identification include: driver’s license, government ID card, IDNYC card, passport, school or work ID card (or a photo of the same).

There is no affirmative duty for a business to verify that the proof of vaccination that has been provided is real, but if fake proof of vaccination is suspected to have been provided, businesses may call 311.

Additionally, in the event that people refuse to cooperate with the new requirement, and decline to show proof of vaccination, entry should be denied, unless that individual is entering for very limited purposes like using the restroom or paying a bill.

Businesses are not required to keep a record of the vaccine information they review, nor are they required to maintain a record that details that vaccination information was collected at all.

Businesses may, however, keep a record of people who have previously provided proof of vaccination, rather than require the proof be displayed every time the person enters the establishment. Any business that does so will have to ensure compliance with the EEOC’s guidance, which requires that employers treat vaccination records as confidential medical information that should be stored separately from an employee’s personnel file.  Businesses should generally be able to comply by simply maintaining a list of persons who have been cleared to enter the premises without further review of vaccine records.

The FAQs make clear that covered businesses may adopt stricter policies and require that staff and patrons be “fully vaccinated” to enter.

Required Signs & Documents

Covered businesses must have a written plan available for inspection that describes how the business will check the vaccination status of staff and customers. It is expected that a template implementation plan will be issued by the City shortly.

Businesses must also post a visible sign that notifies employees and patrons about the vaccination requirement. The NYC Health Department has a model sign or businesses can create their own. The sign must be at least 8.5 x 11 inches, use 14-point font (or larger), and state:

“New York City requires staff and customers 12 years of age and older to be vaccinated against COVID-19 in order to enter this establishment. To find out where to get a free COVID-19 vaccine visit nyc.gov/vaccinefinder or call 877-VAX-4NYC (877-829-4692). For more information on Key to NYC, visit nyc.gov/keytoNYC.”

Discrimination

The City’s guidance emphasizes that proof of vaccination may not be used as a pretense for other forms of unlawful discrimination. The guidance provides a direct link to the New York City Commission on Human Rights and methods for filing a complaint or anonymous tip, and a link to additional “Guidance for Customers and Employees on Equitable Implementation” of Key to NYC, found here.

Businesses should be familiar with the provision of reasonable accommodations for customers who are unable to show proof of vaccination due to disability, and with reasonable accommodations for employees who are unable to show proof of vaccination due to a disability, pregnancy, religious belief, or status as a victim of domestic violence, stalking, or sex offenses.  If patrons or employees are unable to show proof of vaccination because of one of the above mentioned reasons, businesses are required to engage in a cooperative dialogue to see if a reasonable accommodation is possible. The Equitable Implementation guidance suggests that a reasonable accommodation for a customer might include purchasing food to go, joining a virtual exercise class, or speaking with a sales representative by phone. It adds that reasonable accommodations for employees might include working remotely, working only in the outdoor portion of the business or in an area isolated from others, or taking a leave of absence. The guidance makes clear that businesses and employers do not have to provide reasonable accommodations if doing so would create a direct threat to other customers or employees of the business or impose an undue hardship on the business.

Businesses should keep in mind that they should not generally ask patrons for proof of disability, or ask invasive questions about the nature of the disability. However, if employees are seeking reasonable accommodations for a covered reason, an employer may require appropriate documentation supporting your inability to show proof of vaccination.

Penalties

The FAQs clarified that inspectors from various City agencies will be enforcing the requirements beginning September 13, 2021. Violations may result in an initial $1000 fine, with repeat  violations increasing up to $5,000.

Employer Takeaways

Covered businesses should begin to prepare their implementation plans and signage ahead of the September 13, 2021 enforcement deadline. They should also communicate the new requirements to staff right away in order to ensure compliance and address any accommodation needs. Covered businesses should also consider training those employees who will be responsible for checking proof of vaccination, and should continue to monitor the City’s guidance on the Executive Order as so many practical questions remain unanswered. As always, Seyfarth attorneys are available to assist with these efforts and provide any additional guidance as needed.

 

[1] The City’s FAQs clarified that “indoor spaces” do not include structures on a sidewalk or roadway and entirely open on the side facing the sidewalk, or outdoor dining structures designed for individual patrons (such as plastic domes) so long as the dome has adequate ventilation to allow for air circulation.

[2] Fairs and festivals, large scale performing arts and entertainment venues, and professional sports with fans—which have 5k+ attendees, must also comply with the New York State Industry Specific guidance that remains in place.

[3] “Contractor” is defined in the EO to be “the owner and/or employees of any business that a covered entity has hired to perform work within a covered premises, except that it shall not include nonresident owners and/or employees.”

[4] The City’s guidance is complicated by the State’s Emergency Regulations which require masks for anyone in a public place, who cannot maintain six feet social distancing, and who is not “fully vaccinated” meaning two or more weeks have elapsed since such person received the final dose of any COVID-19 vaccine. As such, covered businesses may permit admission to those who are partially vaccinated, but then will have to provide 6 feet of social distancing for patrons who are not fully vaccinated and who need to remove their masks to eat or drink, creating significant logistical headaches for restaurants and other businesses.

[5] At the time of publication, approved vaccinations include the Oxford–AstraZeneca, Pfizer-BioNTech, Sinopharm-BBIBP, Moderna, Sinovac, and Janssen COVID-19 vaccines.

[6] For those who received the vaccine outside of the U.S., they must have an official immunization record that includes: (1) first name and last name; (2) date of birth; (3) vaccine product name -- and the vaccine must be authorized by WHO; (4) date(s) the vaccine was administered; and (5) site where the vaccine was administered or the name of the person who administered it.