Lots to discuss about vaccine cards and how NY wants us all to be a HERO

In this update, we’re discussing how job applicants (and diners, and gym goers, and employees . . .) need to show their v-card and some COVID-19 compliance updates for NY businesses.

College degrees, real world experience, and a vaccine card

If you’re like us, you geek out anytime you see legal issues creeping into everyday life, after all, that’s why we’re writing (and you’re reading) this . . .

If you’ve looked at online job postings recently, you’ll see something interesting: many companies are requiring proof of vaccination as a condition of employment! A recent Indeed.com report found a 90% increase between July and August in job postings requiring proof of vaccination. The industries seeing this the most are education, accounting, marketing, and food/beverage.

We’ve previously discussed vaccination status as a requirement for keeping your job, so a vaccination requirement to get a job is the logical next step, perhaps. Our guidance remains the same: you can require vaccination as a condition to employment, but you’ll still need to be mindful of applicants who aren’t vaccinated due to legitimate religious and/or medical reasons. BONUS TIP: be careful of unintentional discrimination. If a “no vaccine, no job” policy ends up disparately impacting certain groups (minorities, religious sects, etc.), you may find yourself having to explain the legitimate rationale behind your policy.

I can be your HERO, baby

As you may remember, New York passed the New York Health and Essential Rights Act (the “HERO” Act) in May 2021, which added new COVID-19 compliance measures to the New York Labor Law: specifically, requiring employers to prepare model safety plans (including language prohibiting retaliation and discrimination) and create workplace safety committees made up (at least partially) of employees. New York has since provided guidance for employers to comply with the HERO Act. Those docs include: (1) its Airborne Infectious Disease Exposure Prevention (AIDEP) Standard; (2) a Model Airborne Infectious Disease Exposure Prevention Plan; and (3) eleven industry-specific template plans. Employers have until September 4, 2021 to adopt a plan (likely the DOL’s model plan, but you are of course free to create your own that meets the minimum standards requirements) and then post and distribute that plan to staff.

However, after some additional amendments to the HERO Act, employers need not actually implement any of the protocols in the safety unless and until New York designates an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public. As of this newsletter, no designation has been made and your plans need not be “in effect” . . . yet.

Of course, preparation is key and it likely makes sense to think about what plan you’ll adopt. If you need assistance here, we can be your hero, baby (thanks, Enrique!).

NYC Vaccination Mandate for Indoor Activities

Effective this week, people 12+ years of age in New York City will be required to show proof that they’ve received at least one dose of a COVID-19 vaccine for the following activities: indoor dining (includes bars, nightclubs, and grocery stores with indoor dining), indoor fitness, and indoor entertainment (movie theaters, museums, sports arenas, etc.). Staff at these locations are also required to be vaccinated.

If you’re a covered business, you’ve got some homework to do prior to September 13, 2021 – the date this rule becomes enforceable. Preparation includes:

  • Post the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter your business.
  • Become familiar with the accepted proofs of vaccination (NYC COVID Safe App, the Excelsior Pass, a CDC Vaccination Card or photo, a NYC Vaccination Record, or an official immunization record from outside NYC).
  • Develop a written implementation plan that will be available for inspection, which includes how you will check the vaccination status of staff and customers before or immediately after they enter your establishment.
  • Ensure your staff are fully vaccinated.

Like what you’re reading? Confused by what you’re reading? Just want to chat? We’re here for all of it. Let’s have a conversation.

Damien + Brian


Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.

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