Article contributed by Nicole M. Vescova, Ellenoff Grossman & Schole LLP
In an effort to encourage New Yorkers to get vaccinated, New York City has launched the Key to NYC program which requires certain individuals to be vaccinated in order to participate in indoor dining, fitness, recreation and entertainment. Indoor dining includes spaces that have a roof or overhang and three or more walls.
Specifically, employees, customers/patrons over the age of 12 and contractors must provide proof that they have received at least one dose of a FDA or WHO-approved vaccine in order to enter a food service establishment for indoor dining/events. Acceptable proof of vaccination includes an individual’s Excelsior Pass, NYC COVID Safe App, CDC vaccination card or an official vaccination record.
Additionally, customers/patrons over the age of 18 will be required to provide identification that matches their proof of vaccination. Acceptable identification must contain either (1) the individual’s name and photo, or (2) the individual’s name and date of birth, e.g., driver’s license, non-driver government ID card, IDNYC card, passport, school or work ID card.
Is my food service establishment subject to the Key to NYC program?
It depends. All food service establishments that are part of the NYC Department of Health and Mental Hygiene’s restaurant grading program, and offer indoor dining or beverage service, are required to comply with the Key to NYC program, e.g., restaurants, bars, coffee shops, night clubs, and cafeterias. Additionally, grocery stores, food markets, bodegas, and other food retailers that are regulated by the New York State Department of Agriculture and Markets, and offer indoor on-site eating areas, as well as businesses that operate indoor seating at food courts or provide on-premises catering services, must comply with the Key to NYC program. Food service establishments are not required to comply with the Key to NYC program if they only offer take-out and/or delivery.
Is anyone exempt from providing proof of vaccination?
Yes. Food service establishments are not required to verify the vaccination status of individuals entering the establishment for a quick and limited purpose, such as placing or picking up a take-out order, entering the establishment to use the restroom, delivering supplies or making necessary repairs. Additionally, children under the age of 12 may participate in indoor dining/events without providing proof of vaccination status. Any individual who is not required to provide proof of their vaccination status is required to wear a face mask whenever they are inside the establishment and unable to socially distance from other people.
While there is no per se exemption to the proof of vaccination requirement for individuals who cannot be vaccinated, food service establishments must still engage in the cooperative dialogue, and if reasonable and/or feasible, provide reasonable accommodations to: (1) customers/patrons who need them because of a disability; and (2) employees who need them because of a disability, pregnancy, religious belief or their status as a victim of domestic violence, stalking or sex offense. For customers/patrons, potential reasonable accommodations may include having the customer purchase food for takeout or sitting outdoors. For employees, reasonable accommodations may include having the employee work only in outdoor areas and enter the premises for limited purposes, or placing the employee on a leave of absence until they can obtain a vaccine. Businesses are not required to provide accommodations that are not feasible or unreasonable, e.g., waiver of the vaccination requirement for any individual.
Is my food service establishment required to post and/or maintain any documents related to the Key to NYC program?
Yes. Food service establishments are required to (1) post a sign in a location that is easily visible by individuals before they enter the establishment that notifies individuals about the vaccine requirement and (2) adopt a written implementation plan describing how the business will check the vaccination status of individuals upon entry to the food service establishment. The New York City Health Department has published a sign and a template written implementation plan that businesses may use for these purposes (See https://www1.nyc.gov/site/doh/covid/covid-19-vaccines-keytonyc.page).
At the time this article was submitted for publication, there was no explicit requirement that businesses covered by the Key to NYC program maintain a record of each individual whose proof of vaccination was provided. However, the New York City Small Business Service advises that covered businesses will likely be required to maintain a proof of vaccination log in the future, similar to the customer contact tracing and customer/employee health screening logs previously required under the New York State’s reopening guidance for food services establishments.
When do I need to begin complying with the Key to NYC program?
While the Key to NYC program launched on August 17, enforcement does not begin until September 13, 2021. Food service establishments may be subject to a fine of $1,000 for their first violation and repeated violations may result in additional fines. Food service establishments are encouraged to begin making efforts now to ensure compliance with the Key to NYC program.
However, please be advised that the Key to NYC program is subject to change and food service establishments are encouraged to speak with their legal counsel for the most up-to-date information.
Nicole M. Vescova is an Associate in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City. Ms. Vescova represents and advises businesses across all industries in a variety of labor and employment matters, including proper pay practice, employee classification, termination, and leave. Ms. Vescova drafts employment policies and agreements such as employee handbooks, separation agreements and restrictive covenant agreements. She also defends employers against claims brought by employees in federal and state court, and before administrative agencies, such as the EEOC and NLRB. Ms. Vescova (email@example.com) can be reached via phone at 212-370-1300.