Update:  Starting December 14, children ages 5 to 11 wanting to attend the public indoor activities listed below must show proof of at least one dose of the COVID-19 vaccination. Starting December 27, people 12 and older wanting to participate in the listed public indoor activities will be required to show proof they have received two doses of the Pfizer or Moderna vaccine, or the one dose of the Johnson & Johnson vaccine.

*  *  *

New York City recently implemented the Key to NYC Pass, which requires patrons and employees of certain indoor entertainment, recreation, dining, and fitness establishments to prove that they have received at least one dose of the COVID-19 vaccine to enter the establishment.  There is no “testing out” option, so it is possible that some patrons and employees may raise issues of discrimination or request accommodations in relation to the vaccination mandate. 

On August 17, 2021, the New York City Commission on Human Rights (NYCCHR) issued “Guidance for Businesses on Equitable Implementation of Key to NYC.”¹  The guidance is aimed at assisting “covered entities”² and employers impacted by the mandatory vaccination requirements with avoiding discrimination claims and managing requests for reasonable accommodations by those who claim they cannot receive the COVID-19 vaccination due to their membership in one or more protected categories under the New York City Human Rights Law (NYCHRL).³  Similar guidance was also issued for customers and employees. 

As a reminder, customers under the age of 12 are excused from showing proof of vaccination because they are not currently eligible for any COVID-19 vaccines. The guidance states that businesses can allow customers over age 12 without proof of vaccination into indoor premises for a “quick and limited purpose” (for example, to use the bathroom, place a food order, or pick up membership information) as long as they wear a face mask when they are unable to maintain six feet of distance from other people.

NYCHRL Protects Customers and Employees from Discrimination

Prohibited Acts of Discrimination

The NYCCHR’s guidance prohibits a covered entity from discriminating against patrons or employees based on any protected category by engaging in acts such as:

• Scrutinizing proof of vaccination more closely when it is provided by people of a particular race, national origin, or religion based on a perception that people in those groups are less likely to be vaccinated;

• Requiring proof of vaccination only for older people or people with disabilities based on the belief that COVID-19 is more dangerous for them; or

• Refusing to accept certain types of valid proof of vaccination, such as official immunization records from countries outside the United States or photographs of CDC vaccination cards.

Requests for Reasonable Accommodations

An unvaccinated patron or employee can request a reasonable accommodation from complying with the requirements of the Key to NYC Pass.  Notably, however, a covered entity or employer need not provide a reasonable accommodation if it would cause a direct threat to other customers or employees of the business or impose an undue hardship on the business. 

Requests for Reasonable Accommodations from Customers Due to a Disability

Generally, covered entities must provide reasonable accommodations to customers who request them because of a disability.  With regard to the Key to NYC Pass requirements, if a customer is unable to show proof of vaccination due to a disability, a covered entity is required to engage in a cooperative dialogue, or a good-faith discussion, with the patron to see if a reasonable accommodation is possible that would not pose a direct threat or an undue hardship to their business.

Notably, the guidance states that businesses should not ask customers for evidence that they are unable to show proof of vaccination due to a disability. Instead, businesses should limit their engagement with the customers to the cooperative dialogue.

Reasonable accommodation can take many forms, and the guidance offers the following suggestions: a customer could purchase food to take with them, join a virtual exercise class, or speak with a sales representative by phone.

As an additional example, the guidance explains that if a customer wants to access the interior of a restaurant, but states that they are unable to get vaccinated because of a medical condition, if the customer accepts a take-out menu, returns home, orders food and the restaurant delivers the meal to the customer’s nearby residence “the business has provided a reasonable accommodation.” 

The NYCCHR’s guidance appears to suggest that a reasonable accommodation need not include permitting an unvaccinated person to access indoor premises.  It suggests that possible reasonable accommodations to consider for unvaccinated patrons include virtual tours, online entertainment or classes and access to outdoor facilities.

As discussed below, a covered entity does not have to provide an accommodation if it would cause a “direct threat” to other customers or employees of the business or impose an “undue hardship” on the business.  The “direct threat” and undue hardship analyses are discussed below. Unfortunately, the guidance does not provide any examples of how the direct threat and undue hardship standards might apply in this context.

Reasonable Accommodations for Employees

In addition to providing reasonable accommodations to employees due to a disability, covered employers must also provide a reasonable accommodation to employees who require them due to pregnancy, religious belief, or their status as a victim of domestic violence, stalking, or sex offenses. If an employee requests an exception to the vaccine requirement or additional time to provide proof of vaccination for one of these reasons, employers must engage with them in a cooperative dialogue as to whether a reasonable accommodation is possible, or whether such accommodation would pose a direct threat to other customers or employees or an undue hardship on the business.

The guidance provides the following examples of reasonable accommodations for unvaccinated employees who cannot access the indoor spaces of a covered entity due to the Key to NYC Pass: employees could work remotely, perform their job duties outside or in an area isolated from other employees or customers, or take a leave of absence.

The guidance explains that while engaging in a cooperative dialogue, employers can ask for documentation from their employees in the following scenarios:

• If an employee is seeking a reasonable accommodation because of a disability or pregnancy, an employer can request a note from their medical provider supporting their inability to obtain vaccination.

• If an employee is seeking a reasonable accommodation because of their religious beliefs, an employer can request supporting documentation only if the employer has an objective basis to question the sincerity of the stated religious basis for the employee’s inability to obtain vaccination.

• If an employee is seeking a reasonable accommodation because of their status as a victim of domestic violence, sex offenses, or stalking, an employer can request a note from a related service provider supporting their inability to show proof of vaccination.

Employers need to provide the person who sought the reasonable accommodation with a written decision as to whether the accommodation was granted or denied. 

The guidance notes that in some cases a covered employer may want to allow an unvaccinated employee who is not entitled to a reasonable accommodation to continue working.  In that event, the employer can allow the unvaccinated employee into the interior portion of the premises “only if it is for a quick and limited purposes, such as changing clothes in a locker room, and if they wear a face mask at all times they are unable to maintain 6 feet of distance from other people.” 

Again, the NYCCHR’s examples do not automatically assume that an unvaccinated employee must be accommodated by working indoors in close proximity to others. There is nothing in the guidance that suggests allowing patrons or employees to access the indoor facility as usual, but with a face covering, is a reasonable alternative.  The exclusion of unvaccinated patrons and employees from the covered indoor facilities, while providing reasonable accommodations outside of the facility, appears to be the only option.

With regard to providing reasonable accommodations for employees working in indoor food services facilities, an option may be to assign the unvaccinated employee to the outdoor dining area only or providing a reasonable leave of absence until vaccination can be achieved. Working outdoors only could be problematic for many businesses, however, as the employee maybe required to enter the indoor kitchen or bar area to pick up food and drinks and deliver them outdoors. 

Unvaccinated employees can be assigned to outdoor areas only or perhaps provided a reasonable leave of absence until the vaccination can be obtained. Generally, employee leaves of absence that are offered as an accommodation do not need to be paid unless other employees are normally paid for similar leaves.

Direct Threat Analysis

According to the NYCCHR, a “direct threat” is something that poses “a significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation.”⁴  The determination that an individual with a disability poses a direct threat “shall be based on an individualized assessment of the individual’s present ability to perform safely the essential functions of the job” and the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.    

Importantly, the guidance acknowledges that covered entities and employers may rely on the “direct threat” analysis to exclude unvaccinated patrons and employees from accessing certain indoor entertainment, recreation, dining, and fitness establishments.  “Direct threat” is perhaps the strongest argument that a business can make, especially where the threat at issue is the spread of the highly contagious COVID-19 Delta variant among patrons and employees. 

Undue Hardship Analysis

An employer or covered entity does not need to make an accommodation if it would cause an undue hardship.  The employer or covered entity would have the burden of establishing an undue hardship.  The NYCHRL sets forth the following non-exhaustive list of factors to be considered to determine if an undue hardship exists:

a) the nature and cost of the accommodation;

b) the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

c) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.⁵

The undue hardship analysis is complex, and it requires a case-by-case assessment.  The underlying concept is that a reasonable accommodation cannot be denied just because it involves a monetary cost.  Rather, the overall financial resources available to the business will be considered.  Ultimately, employers and covered entities can conduct the undue burden analysis to determine if a requested accommodation is warranted, or if a different accommodation or none at all can be offered to the unvaccinated patron or employee.  

Fines, Penalties, Complaints and Civil Litigation

It is imperative that covered entities have a written protocol in place before September 13, 2021 for checking the vaccination status of employees and patrons and for handling requests for accommodations. Covered entities must also post a sign⁶ required by Executive Order No. 225, which directs enforcement of The Key to NYC Pass.   

The city will begin enforcing the requirements of The Key to NYC Pass beginning September 13, 2021.  Inspectors from various New York City agencies will begin inspections and enforcement on September 13, 2021.  Notably, each instance that a covered entity fails to check an individual’s vaccination status will constitute a separate violation of Executive Order No. 225. Fines, penalties and forfeiture of not less than $1,000 can be assessed for the first violation, increasing to $2,000 for a subsequent violation within 12 months of the first violation, and increasing to $5,000 for a violation within 12 months of the second violation.

In addition, employees and patrons who believe the business has not engaged in a cooperative dialogue or reasonably accommodated them can file a charge of discrimination with the city, state or federal agency or choose to file a lawsuit in state or federal court.  Damages can include compensatory damages, attorneys’ fees, costs and liquidated damages. 

Conclusion

As businesses embark on complying with their newly established obligations under the Key to NYC Pass, they must be careful to apply its standards uniformly.  The NYCCHR’s guidance provides some basic guideposts for compliance. Covered entities and employers must also engage in a cooperative dialogue to determine whether and how they can reasonably accommodate unvaccinated patrons or employees and possibly conduct a direct threat or undue burden analysis to determine whether a requested accommodation can be provided.  Employers are advised to consult counsel in navigating the cooperative dialogue and accommodation process.