Mayor Issues Executive Order Regarding Key to NYC: Here Are the Details

Photo courtesy of Axios

Mayor Bill de Blasio has issued an Executive Order outlining details pertaining to the Key to NYC proof of vaccination mandate. 

Establishments 

Broadly speaking, the mandate applies to indoor entertainment, recreation, dining, and fitness establishments. More specifically, the list includes: 

• Movie theaters
• Music or concert venues
• Adult entertainment
• Casinos
• Botanical gardens
• Commercial event and party venues
• Museums and galleries
• Aquariums
• Zoos
• Professional sports arenas and indoor stadiums
• Convention centers and exhibition halls
• Performing arts theaters
• Bowling alleys
• Arcades
• Indoor play areas
• Pool and billiard halls
• and other recreational game centers.
• *For establishments that have both indoor and outdoor portions, only the indoor portion is covered by the mandate. If an establishment has been limiting its operations to take-out, delivery, or outdoor dining – it must remove or block any remaining indoor tables, chairs, or other furnishings normally used by patrons for indoor dining (e.g., with signs or tape) so they are unavailable for use. 

Establishment Details by sector:

• Food Service 

• All food service establishments that are part of the NYC Department of Health and Mental Hygiene’s restaurant grading program that offer indoor dining or beverage service, including: 
  • Restaurants
  • Bars
  • Coffee shops 
  • Night clubs  
  • Dining establishments in hotels, colleges and universities, and malls 
  • Cafeterias 
• Businesses that operate indoor seating at food courts, including in hotels and malls 
• Businesses that provide on-premises catering services 
• Grocery stores, food markets, bodegas and other food retailers that are regulated by the New York State Department of Agriculture and Markets if they offer indoor on-site eating areas
• Fitness 
  • Standalone gyms and fitness centers
  • Hotel gyms and fitness centers
  • Gyms and fitness centers in higher education institutions
  • Yoga, Pilates, dance, and barre studios
  • Boxing and kickboxing gyms
  • Fitness boot camps
  • Indoor pools
  • CrossFit or other plyometric boxes; 
  • and other places holding indoor group fitness classes.
    • “Group fitness classes” are defined as two (2) or more participants led by an instructor. 

What is Not Included Under this Mandate: Structures and Establishments 

• Structures
  • Structures on a sidewalk or roadway and entirely open on the side facing the sidewalk
  • An outdoor dining structure designed for individual parties (such as plastic domes) so long as the dome has adequate ventilation to allow for air circulation. 
• Establishments 
  • Private residential buildings when those settings are available only to residents 
  • Office buildings when those settings are available only to office staff 
  • Pre-K through grade 12 schools 
  • Senior centers 
  • Community Centers 
  • Child care programs

Individuals 

Who is included: all individuals 12 years old or older. 

Who is not included – and thus must wear a mask at all times whenever 6 feet of distance cannot be maintained:

• Individuals entering for a quick and limited purpose 
  • Quick and limited purpose would include using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs     
• Individuals making deliveries or pickups         

• Nonresident individuals who are performing artists not regularly employed by the covered entity while they are in a covered premises for purposes of performing
• Nonresident individuals who are professional athletes/sports teams who enter a covered premises as part of their regular employment for purposes of competing
• Nonresident individuals 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.
• Individuals under the age of 12 

Proof

Vaccines Accepted: at least 1 dose from either

• A vaccine authorized by the U.S. Food and Drug Administration (FDA)
• A vaccine authorized by the World Health Organization (WHO)
  • This applies even if the vaccine has not yet been approved by the FDA – ie the AstraZeneca vaccine.  

Proof Accepted

• A CDC Vaccination Record Card;        
• An official immunization record from the jurisdiction, state or country where the vaccine was administered;
• A digital or physical photo of such card or record, reflecting the person’s name, vaccine brand, and date administered (or picture thereof); 
• The New York City COVID Safe Pass app; 
• The New York State Excelsior Pass app.

*Note: No proof or identification beyond a vaccination card is required and businesses are not required to verify that the proof of vaccination provided by the employee or patron is real. 

• However, if a person presents what a business beliefs is a fake vaccination card, businesses may report it by:
  • Calling 311
  • Calling the New York State Attorney General
  • Calling a New York State hotline (833-VAX-SCAM)
  • Emailing the New York State Department of Health (stopvaxfraud@health.ny.gov).  

Noncompliance Penalties

The program launches today, August 17th, however enforcement does not begin until September 13th. 

Therefore, on September 13th, the Department of Health will begin issuing fines for noncompliance. These fines will be structured as such:

• No less than $1,000 for a first offense;
• $2,000 for a second event within 12 months;
• and $5,000 for each subsequent offense within 12 months.
• *Note: each instance that a covered entity fails to check an individual’s vaccination status shall be considered a separate violation of the order. 

*Note: Customer Noncompliance 

• Although the Executive Order did not outline what businesses should do if a customer does not comply, the Office of Administrative Trials and Hearings will be posting a webinar setting out best practices for conflict resolution training between customers and businesses by August 20, 2021: https://www1.nyc.gov/site/oath/conflict-resolution/conflict-resolution.page 
• Additionally, private businesses should call 911 to report an emergency situation or condition that might cause danger to life or personal property 

What Else do Businesses Need to Do Besides Check Vaccination Status?

1. Post a sign in a conspicuous place that is viewable by prospective patrons entering the establishment. 
   1. The city has published a poster that can be used for this purpose 
      1. It is available online at nyc.gov/keytoNYC or by calling 311, which will mail the sign to you for free. 
      2. The sign is available in multiple languages. 
   2. An establishment can also create its own sign, which must be at least 8.5 x 11 inches, use at least 14-point font, and include this text: 
      1. “New York City requires staff and customers 12 years of age and older to be vaccinated against COVID-19 in order to enter this establishment. To find out where to get a free COVID-19 vaccine visit nyc.gov/vaccinefinder or call 877-VAX-4NYC ((646) 766-8308). For more information on Key to NYC, visit nyc.gov/keytoNYC.”
2. Develop a written implementation plan that will be available for inspection. 
   1. The written plan must address how businesses will check the vaccination status of staff and customers before or immediately after they enter a business. 
3. Keep in mind that appropriate reasonable accommodations

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