New York City Mayor Bill DeBlasio's Executive Order No. 225 (entitled "Key to NYC") requires workers and patrons to present proof of at least one dose of a COVID-19 vaccine authorized by the Food and Drug Administration or World Health Organization prior to entering certain indoor settings. The Key to NYC vaccine requirements extend to full or part-time employees, interns, volunteers, or contractors; and patrons 12 years of age and older who enter indoor entertainment and recreational settings, indoor food services, and indoor gyms and fitness settings covered by the executive order.
The Key to NYC requirements took effect on August 17, 2021, and the City will begin enforcing the law September 13, 2021. The City has issued Guidance on the equitable implementation of the Key to NYC Pass and FAQs.
Critically, the Key to NYC requirements are limited to indoor portions of entities having a roof or overhang and three or more walls. Indoor spaces under these circumstances expressly exclude structures on sidewalks or roads that have an open side facing the sidewalk or outdoor dining structures designed for parties where they are adequately ventilated.
Further, patrons under the age of 12 are not required to present proof of vaccination provided they wear a face mask (except when eating and drinking) whenever social distance of six feet cannot be maintained.
Proof of Vaccination
Proof of vaccination may be established either through a CDC vaccine card; the New York City COVID Safe Pass; the New York State Excelsior Pass; or the official COVID-19 vaccination record from the jurisdiction, state, or country where the vaccine was received. Personal identification1 must also be reviewed by covered establishments for anyone who appears to be 18 or older to confirm that it matches the information from the proof of vaccination.
If a business already maintains identifying records for employees or customers, then an identification check is not required for those individuals.
What Entities Are Covered?
A covered premises is any location that is used for indoor entertainment and recreational settings, indoor food services, and indoor gyms and fitness settings as defined below (excluding those spaces in residential or office buildings that are limited to residents, owners, or tenants of that building). Purely retail establishments are not covered by the Key to NYC requirements.
Indoor entertainment and recreational settings include indoor portions of the following locations:
- Adult entertainment;
- Botanical gardens;
- Bowling alleys;
- Commercial event and party venues;
- Convention centers and exhibition halls;
- Indoor play areas;
- Movie theaters;
- Museums and galleries;
- Music or concert venues;
- Performing arts theaters;
- Professional sports arenas and indoor stadiums;
- Pool and billiard halls;
- Zoos; and
- Other recreational game centers.
Indoor food services include the indoor portions of food service establishments, including:
- All indoor dining areas of food service establishments that receive letter grades as described in section 81.51 of the Health Code;
- Businesses operating indoor seating areas of food courts;
- Catering food service establishments that provide food indoors on its premises; and
- Any indoor portions of food service establishment that is regulated by the New York State Department of Agriculture and Markets offering food for on-premises indoor consumption
Businesses that offer only take-out or delivery are excluded from coverage under the Key to NYC. Further, if a business only offers take-out, delivery, or outdoor dining, then any indoor dining furniture must be removed or blocked off so that it may not be used.
Indoor gym and fitness settings include:
- Indoor portions of standalone and hotel gyms and fitness centers;
- Gyms and fitness centers in higher education institutions;
- Yoga/Pilates/barre/dance studios;
- Boxing/kickboxing gyms;
- Fitness boot camps;
- Indoor pools; and
- CrossFit or other plyometric boxes and other facilities used for conducting group fitness classes led by an instructor with at least two participants.
Individuals Exempt From the Vaccine Mandate
Proof of vaccination is not required for the following individuals, provided a face mask is worn when a six-foot distance is not maintained inside a covered premises:
- Individuals entering for a quick and limited purpose (such as using the restroom, placing or picking up an order);
- A nonresident performing artist not regularly employed by the covered entity while they are in a covered premises for purposes of performing;
- A nonresident professional athlete/sports team who enters a covered premises as part of their regular employment for purposes of competing; and
- A nonresident individual accompanying a performing artist or professional athlete/sports team into a covered premises as part of their regular employment so long as the performing artist or professional athlete/sports team are performing or competing in the covered premises.
What Else Must Covered Entities Do to Comply With Key to NYC?
In addition to requiring proof of vacation, covered entities must prepare a written plan for the implementation and enforcement of the requirements of the Key to NYC. Covered entities must also conspicuously post a sign alerting patrons of the vaccine requirement and detailing that employees and patrons are required to be vaccinated. A model sign is available here, or a covered entity may create its own sign, provided the sign is at least 8.5" x 11," uses 14 point font, and contains the text provided by the New York City Department for Health and Mental Hygiene.
Covered entities must heed New York City Commission on Human Rights' guidance advising entities that they cannot treat customers or employees differently because of their race, national origin, disability, gender, religion/creed, age, or any other characteristic protected by the New York City Human Rights Law. Additionally, covered establishments must be mindful of their obligation to provide a 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 of vaccination due to disability, pregnancy, religious belief, or their status as a victim of domestic violence, stalking, or sex offenses.
Businesses must then engage in a cooperative dialogue about the same to see if a reasonable accommodation is possible. Reasonable accommodations are not required if doing so would pose a direct threat to customers or employees of the business or otherwise impose an undue hardship on the business.
Consequences for Non-Compliance?
Effective September 13, 2021, covered entities will be subject to the enforcement measures of Key to NYC, including increasing fines for violations, as each instance that a covered entity fails to check an individual's vaccination status constitutes a violation. An initial violation is subject to a fine of no less than $1,000.
If a subsequent violation occurs within one year of the initial violation, a fine of not less than $2,000 will be assessed. Additional violations will be subject to fines of not less than $5,000 if the additional violation occurs within one year of the prior violation.
Covered entities should, to the extent they have not already done so, prepare their written protocol and train their employees:
- (i) On their obligations to request proof of vaccination;
- (ii) On what constitutes proof of vaccination;
- (iii) How to navigate circumstances in which customers refuse to comply; and
- (iv) How to engage in a cooperative dialogue with customers who are not vaccinated due to a covered protected characteristic under the NYCHRL.
Significantly, covered entities should take these steps well in advance of the September 13, 2021, enforcement date so that their employees understand how to comply with the new law. The City will be hosting webinars on the Key to NYC Guidelines and Resources to Help Your Business, as well as a training on conflict resolution to help businesses navigate these issues.
1 Identification must contain the name of the individual and a photo of the individual; or the name of the individual and the individual's date of birth. Businesses must then compare the name and photo or date of birth with that displayed on the proof of vaccination.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.