FAQ: How New York City’s COVID Vaccination Requirement Impacts Boards & Building Owners
While the vaccination mandate does not specifically mention multifamily residential buildings as a workplace, the mandate applies to all permanent or temporary employees, and workers employed as contractors performing work for building owners and the managing agent. The vaccination mandate also applies to third-party contractors employed by residents to work in their apartments. In this instance, building owners and managers are not required to obtain proof of vaccination from such workers, as that is the responsibility of the resident.
FirstService Residential maintains a close relationship with the Real Estate Board of New York (REBNY) and is working in collaboration with the association to obtain further clarification from the Mayor’s Office on how the mandate pertains to multifamily residential buildings. To help our clients navigate the intricate new law, our experts have assembled answers to the most frequently asked questions.
As there have been a number of updates since the release of the guidance, and we cannot predict when further updates will be released, this information is current as of the date at the end of this FAQ.
Properties managed by FirstService Residential will receive updates and memorandums as more information is released from city agencies.
Is my condominium, cooperative or multifamily rental property considered a “covered entity” and a “workplace?”By definition, a covered entity is a non-governmental entity that employs more than one worker or maintains a workplace in New York City. A residential apartment building, whether a rental, co-op or a condo, is a covered entity. Any location where work is performed in the presence of another person is considered a workplace.
A worker is an individual who is employed and stationed in-person either full or part time. In practice, this includes a vendor or contractor performing work at the property, staff members, as well as the employer. A worker does not include a person who provides services from home or has no contact with co-workers or members of the public.
A worker does not include persons who enter into the building for a “quick and limited purpose” (i.e., to access a bathroom, to make a delivery, to retrieve a parcel, etc.).
What types of documentation are accepted for proof of vaccination from a worker?The accepted documents for proof of vaccination include a CDC COVID-19 Vaccination Card Record or a digital photo of the card, the NYC COVID Safe App, the CLEAR Health Pass and the NYS Excelsior Pass or Excelsior Pass Plus.
How does an employer demonstrate compliance with the Order?By December 27, each covered entity must complete the Affirmation of Compliance with Workplace Vaccination Requirements certificate and display the document in a public place within the workplace.
What will suffice as proof of vaccination?The goal is to have all workers fully vaccinated. The term “fully vaccinated” means that at least two weeks have passed after an individual has received a single dose of a COVID-19 vaccine that requires one dose (Johnson & Johnson) or the second dose of a two-dose COVID-19 vaccine (Moderna and Pfizer).
As of December 27, in order to continue to work or start working for an employer in the future, a worker must submit documentation to their employer that demonstrates receipt of the one-dose vaccine or the first dose of a two-dose vaccine. Any worker who is awaiting a second dose of the two-dose vaccine must receive that second dose within 45 days of the first dose, or the worker will no longer be eligible to work.
The employer is obligated to track vaccination dates and either obtain proof of the second dose in the 45-day period or stop the worker from continuing to work in the workplace. The super, resident manager or property manager in charge of the vaccination log will need to follow up with that worker to document that he/she has received the second dose and record the date of receipt.
Boards and building owners cannot require workers to receive a vaccine from any specific manufacturer or exhibit preference for workers who receive vaccination from one manufacturer instead of another.
What sort of records showing proof of vaccination among building workers are boards and building owners expected to maintain?There are no specific requirements outlining how boards and building owners must maintain workers’ vaccination records. To simplify the process, the employer may retain a copy of the documentation submitted by each employee. If a copy is retained by the employer, it must be maintained in a secure manner to ensure that the information remains private and protected. However, an employer may also view the proof of vaccination and record that the proof has been reviewed.
FirstService Residential recommends that each building worker meet with the resident manager or superintendent who will maintain a log of worker vaccinations.
The log must include:
- Employee name
- Date when the proof of vaccination was provided
- Vaccination status:
- If the worker is fully or partially vaccinated
- If partially vaccinated, the date by which the second dose must be administered
*45 days from the date the first dose was administered
- If the worker refused to be vaccinated or to provide proof
*This worker cannot work in the workplace
- If the worker is seeking a religious or medical exemption from vaccination and a reasonable accommodation to continue to work
*This worker is permitted to continue working until the right to an exemption and a reasonable accommodation are determined.
What is considered a legitimate basis for a vaccination exemption?A vaccine exemption may only be granted for religious or medical reasons (i.e., disability, allergic reaction, pre-existing health conditions, pregnancy, etc.).
Workers who are seeking an exemption for religious reasons should be asked to provide an explanation of the basis upon which the belief prevents them from being vaccinated. Social, political, economic views or personal preferences do not constitute sincere religious beliefs warranting an exemption. Additional questions can be asked that might elicit more information to discern if the belief qualifies for an exemption.
Workers seeking a reasonable accommodation due to medical reasons should be asked to provide a note from their medical provider.
To assist our managed properties, FirstService Residential has prepared forms for workers to document a request for an exemption. These forms were reviewed by the Real Estate Advisory Board (RAB) who advised that they were consistent with the Memorandum of Agreement between SEIU Local 32BJ and the RAB.
These forms may be suitable for workers in non-union buildings.
All requests for reasonable accommodation for existing employees must be submitted and recorded before December 27. Boards and building owners may allow the worker to continue working after December 27 while the request for an exemption is under review.
How should a decision be made on a request for a vaccination exemption?If a board or owner receives an exemption request, we urge that this be handled under the direction of an attorney representing the building. If the employees are represented by a union, the RAB will assist in this process. FirstService Residential is working with Clifton Budd & DeMaria, a firm specializing in labor law, to assist in the process. The base price is $300 per application, and it will cover an initial review and recommendation based on a completed form recommended by FirstService Residential. If extensive follow up is required, additional fees will apply based on current rates.
What are reasonable accommodations for building workers unable to receive vaccination due to religious beliefs or medical conditions?Similar to processing a request for an accommodation for a disability, there needs to be an interactive process for determining an appropriate accommodation that is acceptable to the employer and is consistent with the purpose of this order.
Reasonable accommodations to consider:
- Reschedule the worker for a different shift or position to protect other building workers and the residents
- Require the worker to wear an N95 face covering at all times in addition to frequent PCR testing
*Under 32BJ MOA, a building may require the employee to take up to two tests each week which are at the worker’s expense and are to be scheduled on the worker’s own time.
If no reasonable accommodation is possible, the board or building owner will need to consider the following:
- Allow the worker to take an unpaid leave of absence (LOA). A LOA means that if the worker were to get vaccinated or the vaccine mandate is lifted, the worker may have rights to be restored to his prior position. The MOA with SEIU 32BJ requires buildings to allow the worker to take a LOA for up to four months. If the worker is eligible to return before the end of that period (i.e., if the worker decides to get vaccinated), the building would have to restore the worker to the former position. Under the MOA, the LOA can extend to six months.
- Termination is the other option, and it may be the only feasible choice. In this instance, the worker may be eligible for unemployment benefits.
How can boards and owners avoid discrimination claims and litigation regarding the COVID-19 vaccination mandate and exemption requests?It’s imperative for boards and owners to consult the building attorney when considering accommodations for vaccination exemptions. This includes any forms used to consider an exemption request, the interactive process required to determine a reasonable accommodation, the decision to grant or deny the request and how that decision is relayed.
In general, the order has been implemented with the goal of protecting the health and safety of the public. It is likely that similar standards to claims under other anti-discrimination laws will apply. However, it is not clear what standards will be used when trying to evaluate the efforts made to determine if a worker is entitled to an exemption and if so in trying to find an accommodation.
As noted above, the best protection against a claim is to consult with qualified counsel when responding to any request for an exemption and to engage in an interactive process when considering a reasonable accommodation.
What is the course of action if the super or resident manager refuses vaccination and requests an exemption?If the building’s super or resident manager requests an exemption, there are two issues that now need to be addressed. The first is the same as any other employee as described above. The validity of the exemption needs to be evaluated and, if validated, whether a reasonable accommodation is possible. There is an expedited process for arbitrating any disagreements for those supers/resident managers who are members of Local 32BJ.
The second is that the super or resident manager is the person designated to address the vaccination of the other staff members. However, if this person is refusing to be vaccinated or seeking an exemption, it is hard to trust this same person to manage obtaining proof of vaccination for the rest of the staff. Consult with your property manager to work out an appropriate alternative.
Is proof of vaccination required for third-party workers and contractors working in the building?
Yes, workers who are not employed by the building who need access to the property to perform work for the building must provide proof of vaccination. There is an exception for this person if access is required for a quick and limited purpose. A delivery person is a clear example of this exception.
Workers who must provide proof of vaccination include:
- General repair and maintenance persons (i.e., a plumber or handyman called in for a repair)
- Service contractors (i.e., elevator maintenance or pest control)
- Major construction workers (i.e., facade renovation)
- Workers employed by a staffing agency (i.e., security guards or door persons)
Similar to logs kept for workers employed by the building, a board or owner may have the super review the proof of vaccination and then record on a log sheet:
- First and last name
- Vaccination status and date of review
- Name of the worker’s employer
Workers employed by the United State Postal Service, private mail or package couriers, restaurant delivery workers and real estate brokers would seem to fall under the definition of “quick and limited purpose.” Movers and similar workers who traverse in and out of the building throughout the day for extended periods of time may fall outside the definition of quick and limited purpose.
No matter the circumstance, boards and building owners have the right to establish stringent proof of vaccination policies that exceed the requirements of the order.
Is proof of vaccination required for third-party workers and contractors employed by residents?The order does not provide specific guidance on the obligation of the building owner to obtain proof of vaccination for workers employed by individual apartment owners, shareholders and residents. Assuming the definition of a “workplace” includes individual units, then these workers will need to provide proof of vaccination. Buildings may require review of the proof and log vaccination status. Examples may include nannies, housekeepers, dog walkers, repair persons and contractors for major alterations.
REBNY received an informal response from the city that building owners do not have to require proof of vaccination from housekeepers working for a resident in that resident’s unit. Expanding this to include other workers engaged by a resident would obviate the need for the board or building owner to request proof of vaccination.
If a building has the ability to review proof of vaccination for workers coming to work for a resident and to record it in a log, the building will be sure to meet the requirements of the city order. However, boards and building owners are in the best position to identify which solutions will work best for the property and should consult with their counsel to determine the appropriate solution.
Our property managers are here to help advise boards and owners on how to implement these procedures and to address any unique limitations based on the nature of the building.
Does the order require boards and owners to maintain records of workers employed by a commercial space, parking garage or any other sub-component of the building that is occupied by a private business?Under the most common reading of the order, workers employed by a retail tenant or garage with a separate entrance to the unit are not entering the workplace of the residential building and there is no need to have proof of vaccination of the workers for these businesses.
What are the penalties for buildings that violate the vaccination mandate and required procedures?The initial violation will result in a $1,000 penalty. It is unclear when, if or by how much the penalty increases for subsequent violations.
What is the best course of action for a building that is extremely short-staffed?There may be buildings that are extremely short-staffed as a result of the mandate or from the surge in COVID-19 infections.
Given the unique challenges and requirements for each property, there is no one-size-fits-all solution. Boards and owners may need to consider paying overtime to existing employees who are willing to assist. There are also third-party staffing services that maintain a network of experienced building staff members to fill vacancies in the event of a strike or workforce shortages. If the situation becomes dire, you may consider soliciting resident volunteers for simple tasks (i.e., trash collection, cleaning, etc.).
FirstService Residential is committed to protecting the health and safety of the boards, building owners and residents under our care. This includes local law compliance and avoiding fines, mitigating exposure and legal liability, building operations and best employment practices. For decades we have partnered with the leading legal entities in the real estate sector to ensure the delivery of the most accurate and up-to-date guidance on complex regulatory issues.
If you’re a board or building owner in need of a property manager best equipped to support your property during these challenging times, contact FirstService Residential today.
**This FAQ is not intended to provide or substitute legal advice from a licensed attorney, but rather provide general guidance. We always recommend that boards and building owners convene with their attorney to mitigate potential exposure and liability.