Can An Employer In Manhattan, NY Require An Executive Or A Professional To Be Vaccinated Against COVID-19?

Under NY Law, executives and professionals are considered employees. They are required to comply with their employers’ vaccination mandates to the same extent that other employees in Manhattan must comply with such mandates.

Under federal law, businesses with 100 or more employees must, by December 5, 2021, develop, implement, and enforce a mandatory COVID-19 vaccination policy for all employees physically entering the workplace, with an exception for employers that, by January 4, 2022, instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Federal law excepts from covered employers’ mandatory COVID-19 vaccination policies, among other employees, employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

An employer in New York State may require all employees physically entering the workplace to be fully vaccinated against COVID-19, as long as the employers reasonably accommodate those employees who do not get vaccinated against COVID-19 because of a sincerely held religious belief, a disability, a pregnancy, or, in Manhattan only, status as a victim of domestic violence, stalking, or sex offenses.

Further, in Manhattan only, most employers must require all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the employer’s duty to reasonably accommodate the above-mentioned categories of workers.

The ability or duty of employers in Manhattan to require all employees physically entering the workplace to be fully vaccinated against COVID-19 is governed by three different bodies of law: federal laws (that is, laws applying throughout the United States), New York State laws, and the borough of Manhattan-specific laws. Let’s examine, in turn, each of these sources of authority.

Federal Law

The federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) and the Americans with Disabilities Act (“the A.D.A.”) and other equal employment opportunity considerations discussed in this article.

In some circumstances, Title VII and the A.D.A. require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19 unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship differs depending on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.

Further, it is unlawful to apply a vaccination requirement to employees in a manner that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

An employee who does not get vaccinated due to a disability (covered by the A.D.A.) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For instance, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework (that is, to work remotely), or lastly, accept a reassignment.

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.

In addition, on November 4, 2021, the U.S. Occupational Safety and Health Agency (“OSHA”) issued an Emergency Temporary Standard (an “E.T.S.”) requiring businesses with 100 or more employees, by December 5, 2021, to develop, implement, and enforce a mandatory COVID-19 vaccination policy for all employees physically entering the workplace, with an exception for employers that, by January 4, 2022, instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. According to the White House, this rule will impact more than 80 million workers.

The E.T.S. requires covered employers to give workers up to four hours of paid time off to get vaccinated and to provide workers with reasonable time and paid sick leave to recover from any side effects of getting vaccinated.

The E.T.S. excepts, from covered employers’ mandatory COVID-19 vaccination policies, employees (i) for whom a vaccine is medically contraindicated, (ii) for whom medical necessity requires a delay in vaccination, or (ii) who are legally entitled to a reasonable accommodation under Title VII or the A.D.A. because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

On November 6, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) issued a temporary stay of OSHA’s Emergency Temporary Standard. (The Fifth Circuit is the intermediate federal court of appeals with jurisdiction over Louisianna, Mississippi, and Texas.) In granting the temporary stay, the Fifth Circuit panel stated that there is “cause to believe there are grave statutory and constitutional issues with [the E.T.S.].”

In addition to the E.T.S., President Joseph Biden, on September 9, 2021, issued Executive Order 14042, which requires most federal contractors to mandate that their employees are fully vaccinated against COVID‑19.

New York State Law

Effective May 19, 2021, New York State has adopted the U.S. Department of Health & Human Services Centers for Disease Control and Prevention (the “C.D.C.”) ’s “Interim Public Health Recommendations for Fully Vaccinated People,” issued May 13, 2021 (and updated October 15, 2021), for most businesses and public settings.

Businesses in New York State are authorized either (i) to require masks and six feet of social distancing for employees and/or patrons within their establishments or (ii) to adhere to the C.D.C. guidance, which advises that fully vaccinated individuals do not need to wear masks or be socially distant, but those unvaccinated individuals must continue to wear masks and be socially distant in most settings.

For businesses that do not assemble patrons and/or that operate below New York State’s social gathering limit of 250 people indoors or 500 people outdoors (for example, retail, food services, and offices), if the businesses are implementing the C.D.C. guidance, they may require, from their employees, proof of full vaccination status through paper form, digital application, or the State’s Excelsior Pass. Alternatively, such businesses may rely on self-reporting of vaccination status (for example, the honor system).

For businesses that congregate patrons and operate above New York State’s social gathering limit of 250 people indoors or 500 people outdoors (for example, event venues, sports competitions, performing arts and entertainment, catering halls, and conventions, if the businesses are implementing the C.D.C. guidance, they must require, from their employees, proof of full vaccination status through paper form, digital application, or the State’s Excelsior Pass.

New York City Law

In New York, people 12 and older – including both employees working at these locations and customers — are required to show identification and proof that they have received at least one dose of a COVID-19 vaccine for:

• Indoor dining, including restaurants, catering halls, hotel banquet rooms, bars, nightclubs, cafeterias, coffee shops, fast food restaurants, grocery stores with indoor dining, and other indoor spaces;
• Indoor fitness, including gyms, fitness centers, fitness classes, pools, dance studios, and other indoor fitness studios, such as yoga or Pilates; and
• Indoor entertainment and certain meeting spaces, including movie theaters, music and concert venues, museums, aquariums and zoos, professional sports arenas, indoor stadiums, convention centers, exhibition halls, hotel meeting, and event spaces, performing arts theaters, bowling alleys, arcades, pool and billiard halls, recreational game centers, adult entertainment, and indoor play areas.

These requirements are imposed by Emergency Executive Order 225, also known as the “Key to N.Y.C.,” which New York City Mayor Bill de Blasio issued on September 16, 2021, and which the City began enforcing on September 13, 2021.

The New York Commission on Human Rights (the “City Commission on Human Rights” or the “NYCCHR”) has issued separate guidance on the duties of businesses under New York City Human Rights Law (the “City Human Rights Law” or the “NYCCHR”) and how those duties interact with the Key to N.Y.C. Specific to Emergency Executive Order 225, the NYCCHR’s guidance states:

• Businesses cannot treat employees or customers differently because of their race, national origin, disability, gender, religion/creed, age, or any other characteristic protected by the NYCHRL.
  • For example, business owners cannot scrutinize proof of vaccination more closely when it is provided by people of a particular race, national origin, or religion or refuse to accept certain types of valid proof of vaccination, such as official immunization records from countries outside the United States.
• Businesses must provide reasonable accommodations to employees who require them because of a disability, pregnancy, religious belief, or status as a victim of domestic violence, stalking, or sex offenses.

If you are an executive or a professional in Manhattan or the surrounding the borough Of Manhattan metro area and you believe that you have been wrongfully terminated, that you’ve been denied a salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call the borough Of Manhattan Employment Lawyer David S. Rich at (347) 941-0760 today.

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