KEY TO NYC: PROOF OF COVID-19 VACCINATION – ACCOMODATIONS AND PRIVACY
Updated: Sep 3, 2021
We previously provided a general description of the NYC regulations mandating proof of vaccination to work at an patronize many of its businesses. Included within that description is a general review of the interactive process required if an employee cannot show proof of vaccination for a qualifying reason, such as a disability. What should you do if a customer cannot show proof of vaccination in NYC?
Let us start by answering the opposite question – be sure to check the ID of a customer appearing to be 18 years of age or older who is able to show documentary proof of vaccination, to ensure that the customer is the same person identified in the record produced. With regard to customers who cannot show proof of vaccination - do not ask for proof or evidence that they are unable to be vaccinated or unable to produce proof of vaccination. Rather, assume that proof cannot be produced, and engage in a discussion of what accommodations may be safely offered to the patron or employee. Explain that the business is not allowed or able to allow the unvaccinated person inside. If the customer self identifies that the reason they cannot show proof of vaccination is unrelated to a disability, such as a political or moral belief, then no accommodation need be provided.
Offer a customer some manner of alternate access, if both safe and reasonable. This can include remote participation or outside seating, or arranging for a delivery.
Note also, persons under 12 do not need to show proof of vaccination.
What should you do if an employee cannot show proof of vaccination in NYC?
If your employee is seeking an accommodation due to an inability to show proof of vaccination due to a disability or pregnancy, you may request a note from their medical provider supporting their inability to show proof of vaccination. If the employee is seeking a reasonable accommodation due to a religious belief, you may only request supporting documentation if you have an objective basis to question the sincerity of the belief. If the accommodation request is based upon their status as a victim of domestic violence, sex offenses, or stalking, you may request a note from a related service provider supporting their request.
When discussing the accommodation with your employees, you must have a good faith discussion about potential reasonable accommodations. This may include remote work, working outside, or working in a separated area isolated from customers and employees, if it can be done safely and does not impose an undue hardship on the employer. Leaves of absence have been increasingly held be the Court system to be reasonable accommodation requests; however, leaves of absence need not be in perpetuity, and may be subject to some manner of limitation which is reasonable under the circumstances.
A major concern of businesses subject to the vaccination verification requirement is data collection and privacy. Businesses covered by these regulations may be subject to significant fines if they are found to have been in violation after September 13, 2021. Therefore, maintaining records of compliance is a key consideration.
Businesses in NYC must maintain a written record of how they will verify proof of vaccination, which must be maintained and available on site, at all times, for inspection. While businesses are allowed to maintain information about customers who have already provided proof of vaccination, there is no requirement to do so. If you do maintain this information, it may be personal and confidential information which you must safeguard against access by third parties.
Helpful links when researching compliance with Key to NYC regulations may include:
KEY to NYC Business Fact Sheet