1 ORDER OF THE COMMISSIONER OF HEALTH AND MENTAL

ORDER OF THE COMMISSIONER

OF HEALTH AND MENTAL HYGIENE

TO REQUIRE COVID-19 VACCINATION IN THE WORKPLACE

WHEREAS, on March 12, 2020, Mayor Bill de Blasio issued Emergency Executive Order

No. 98 declaring a state of emergency in the City to address the threat posed by COVID-19 to the

health and welfare of City residents, and such Order remains in effect; and

WHEREAS, on March 25, 2020, the New York City Commissioner of Health and Mental

Hygiene declared the existence of a public health emergency within the City to address the

continuing threat posed by COVID-19 to the health and welfare of City residents, and such

declaration and public health emergency continue to be in effect; and

WHEREAS, the COVID-19 virus continues to spread and mutate, and on November 26,

2021, the World Health Organization (“WHO”) declared a new variant of COVID-19, named

Omicron, a variant of concern and preliminary evidence suggests an increased risk of reinfection

and spread across the world, including to the United States; and

WHEREAS, on November 26, 2021, New York State Governor Kathy Hochul issued

Executive Order No. 11 to address new emerging threats across the State posed by COVID-19,

finding that New York is experiencing COVID-19 transmission at rates the State has not seen since

April 2020 and that the rate of new COVID-19 hospital admissions has been increasing over the

past month to over 300 new admissions a day; and

WHEREAS, COVID-19 spreads when an infected person exhales the virus and these are

breathed in by other people or land on their eyes, noses, or mouth, with people closer than 6 feet

from the infected person most likely to get infected, making the risk of COVID-19 transmission

greater in workplace settings because of close proximity to others and the sharing of office space

and facilities such as restrooms, elevators, lobbies, meeting and break rooms, and other common

areas; and

WHEREAS, the WHO and the U.S. Centers for Disease Control and Prevention (“CDC”)

have advised all individuals to take measures to reduce their risk of COVID-19, especially the

Delta and Omicron variants, including vaccination, which is an effective tool to prevent the spread

of COVID-19 and benefits both vaccine recipients and those they come into contact with, including

persons who for reasons of age, health, or other conditions cannot themselves be vaccinated; and

WHEREAS, a study by Yale University demonstrated that the City’s vaccination

campaign was estimated to have prevented about 250,000 COVID-19 cases, 44,000

hospitalizations and 8,300 deaths from COVID-19 infection since the start of vaccination through

July 1, 2021, and the City believes the number of prevented cases, hospitalizations and death has

risen since then; and that between January 1, 2021, and June 15, 2021, over 98% of hospitalizations

and deaths from COVID-19 infection involved those who were not fully vaccinated;

WHEREAS, a system of vaccination that requires employers to implement vaccination

policies for their employees will potentially save lives, protect public health, and promote public

safety; and

WHEREAS, on September 9, 2021, President Biden issued an Executive Order stating that

“It is essential that Federal employees take all available steps to protect themselves and avoid

spreading COVID-19 to their co-workers and members of the public,” and ordering each federal

agency to “implement, to the extent consistent with applicable law, a program to require COVID-

19 vaccination for all of its Federal employees, with exceptions only as required by law”; and

WHEREAS, on August 16, 2021, Mayor Bill de Blasio signed Emergency Executive

Order No. 225, the “Key to NYC,” which requires the employees, as well as patrons, of

establishments providing indoor entertainment, dining, and fitness to show proof of at least one

dose of an approved COVID-19 vaccine, and such Order, as reissued in Emergency Executive

Order No. 316 on December 13, 2021, is still in effect; and

WHEREAS, on August 24, 2021, I issued an Order requiring that Department of

Education employees, contractors, and visitors provide proof of COVID-19 vaccination before

entering a DOE building or school setting, and such Order was re-issued on September 12 and

15, 2021, and subsequently amended on September 28, 2021, and such Orders and amendment

were ratified by the Board of Health on September 17, 2021 and October 18, 2021; and

WHEREAS, on September 12, 2021, I issued an Order requiring that staff of early

childhood programs or services provided under contract with the Department of Education or the

Department of Youth and Community Development provide proof of COVID-19 vaccination, and

that Order was ratified by the Board of Health on September 17, 2021; and

WHEREAS, on October 20, 2021, I issued an Order requiring that City employees provide

proof of vaccination to their agencies or offices by October 29, 2021 or be excluded from their

workplace, and on October 31, 2021, I issued a supplemental Order, and both Orders were ratified

by the Board of Health on November 1, 2021; and

WHEREAS, on November 17, 2021, I issued an Order requiring COVID-19 vaccinations

for staff of child care programs, as defined therein, and in early intervention programs, and such

Order was ratified by the Board of Health on November 19, 2021; and

WHEREAS, on December 2, 2021, I issued an Order requiring COVID-19 vaccinations

for all nonpublic school staff and volunteers; and

WHEREAS, pursuant to Section 558 of the New York City Charter (the “Charter”), the

Board of Health may embrace in the Health Code all matters and subjects to which the power and

authority of the Department of Health and Mental Hygiene (“the Department”) extends; and

WHEREAS, pursuant to Section 556 of the Charter and Section 3.01(c) of the Health

Code, the Department is authorized to supervise the control of communicable diseases and

conditions hazardous to life and health and take such actions as may be necessary to assure the

maintenance and protection of public health; and

WHEREAS, Section 17-104 of the New York City Administrative Code (“Administrative

Code”) directs the Department to adopt prompt and effective measures to prevent the

communication of infectious diseases such as COVID-19, and in accordance with Section 17-

109(b) of Administrative Code, the Department may adopt vaccination measures to effectively

prevent the spread of communicable diseases; and

WHEREAS, pursuant to Section 3.01(d) of the Health Code, I am authorized to issue

orders and take actions that I deem necessary for the health and safety of the City and its residents

when urgent public health action is needed to protect the public health against an existing threat and

a public health emergency has been declared pursuant to such section; and

NOW THEREFORE, I, Dave A. Chokshi, MD, MSc, Commissioner of the Department of

Health and Mental Hygiene, finding that a public health emergency within New York City

continues, and that it is necessary for the health and safety of the City and its residents, do hereby

exercise the power of the Board of Health to prevent, mitigate, control and abate the current

emergency, and hereby order that:

1. Beginning December 27, 2021, workers must provide proof of vaccination against COVID-

19 to a covered entity before entering the workplace, and a covered entity must exclude

from the workplace any worker who has not provided such proof, except as provided in

paragraph 5.

2. Covered entities shall verify workers’ proof of vaccination. Covered entities shall:

a. maintain a copy of each worker’s proof of vaccination and, if applicable, a record

of reasonable accommodation(s) as described in (b)(iv); OR

b. maintain a record of such proof of vaccination, provided that such record shall

include:

i. the worker’s name; and

ii. whether the person is fully vaccinated; and

iii. for a worker who submits proof of the first dose of a two-dose vaccine, the

date by which proof of the second dose must be provided, which must be

no later than 45 days after the proof of first dose was submitted; and

iv. for a worker who does not submit proof of COVID-19 vaccination because

of a reasonable accommodation, the record must indicate that such

accommodation was provided, and the covered entity must separately

maintain records stating the basis for such accommodation and any

supporting documentation provided by such worker; OR

c. check the proof of vaccination before allowing a worker to enter the workplace and

maintain a record of the verification.

For a non-employee worker, such as a contractor, a covered entity may request that the

worker’s employer confirm the proof of vaccination in lieu of maintaining the above

records. A covered entity shall maintain a record of such request and confirmation.

Records created or maintained pursuant to this section shall be treated as confidential.

A covered entity shall, upon request by a City agency, make available for inspection

records required to be maintained by this section, consistent with applicable law.

3. No later than December 27, 2021, a covered entity shall affirm on a form provided by the

Department compliance with the requirements of paragraph 2 of this Order and post the

affirmation in a conspicuous location.

4. For purposes of this Order:

a. “Covered entity” means:

i. a non-governmental entity that employs more than one worker in New York

City or maintains a workplace in New York City; or

ii. a self-employed individual or a sole practitioner who works at a workplace

or interacts with workers or the public in the course of their business.

b. “Fully vaccinated” means at least two weeks have passed after an individual

received a single dose of a COVID-19 vaccine that requires only one dose, or the

second dose of a two-dose series of a COVID-19 vaccine approved or authorized

for use by the Food and Drug Administration or World Health Organization, or any

other circumstance defined by the Department in its guidance associated with this

Order.

c. “Proof of vaccination” means one of the following documents demonstrating that

an individual has (1) been fully vaccinated against COVID-19; (2) received one

dose of a single-dose COVID-19 vaccine; or (3) received the first dose of a two-

dose COVID-19 vaccine, provided that a worker providing proof of only such first

dose provides proof of receiving the second dose of that vaccine within 45 days

after receiving the first dose:

i. A CDC COVID-19 Vaccination Record Card or other official immunization

record from the jurisdiction, city, state, or country where the vaccine was

administered, or from a healthcare provider or other approved immunizer

who administered the vaccine, that provides the person’s name, vaccine

brand, and date of administration. A digital photo or photocopy of such

record is also acceptable.

ii. New York City COVID Safe App showing a vaccination record;

iii. A valid New York State Excelsior Pass/Excelsior Pass Plus;

iv. CLEAR Health Pass; or

v. Any other method specified by the Commissioner as sufficient to

demonstrate proof of vaccination.

d. “Worker” means an individual who works in-person in New York City at a

workplace. Worker includes a full- or part-time staff member, employer, employee,

intern, volunteer or contractor of a covered entity, as well as a self-employed

individual or a sole practitioner.

Worker does not include:

i. an individual who works from their own home and whose employment does

not involve interacting in-person with co-workers or members of the public;

ii. an individual who enters the workplace for a quick and limited purpose; or

iii. non-City residents who are performing artists, college or professional

athletes, or individuals accompanying such performing artists or college or

professional athletes who do not have to display proof of vaccination

pursuant to the Key to NYC program, Emergency Executive Order No. 316

and successor Orders.

e. “Workplace” means any location, including a vehicle, where work is performed in

the presence of another worker or member of the public.

5. Nothing in this Order shall be construed to prohibit reasonable accommodations for

medical or religious reasons.

6. This Order shall not apply to covered entities or individuals who are already subject to

another Order of the Commissioner of the Department, Board of Health, the Mayor, or a

State or federal entity that is in effect and requires them to maintain or provide proof of

full vaccination or to individuals who have been granted a reasonable accommodation

pursuant to such requirement.

7. This Order shall take effect immediately, and remain in effect until rescinded, subject to

the authority of the Board of Health to continue, rescind, alter, or modify this Order

pursuant to Section 3.01(d) of the Health Code.

Dated: December 13, 2021 ____________________________________

Dave A. Chokshi, MD, MSc

Commissioner