What Are "Reasonable Accommodations" for the Unvaccinated under the Key to NYC?

Vaccinations were required at the Glass Animals concert at Prospect Park on August 31, even thought outdoor venues do not fall under the Key to NYC mandates.

The Key to NYC forced staff at all indoor dining, entertainment and fitness facilities in New York City to deny entry to anyone who did not show proof of at least one COVID vaccination. Mayor Bill de Blasio announced the ruling on August 3, and Executive Order 225, published on August 16, formalized the policy. The municipal government implemented the mandate on August 16 and will begin enforcing it with inspections and penalties beginning on September 13.

In a revised document, the mayor's Emergency Executive Order 228, issued on August 25, specified in Section 1 that these indoor businesses "shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premises without displaying proof of vaccination and identification bearing the same identifying information as the proof of vaccination." Section 2 allows for selected exemptions, including "individuals entering for a quick and limited purpose (for example, using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs)" and "a nonresident performing artist not regularly employed by the covered entity, or a nonresident individual accompanying such a performing artist, while the performing artist or individual is in a covered premises for the purposes of such artist’s performance." These individuals may enter the indoor venue without displaying proof of vaccination, "provided that such individuals wear a face mask at all times when they are unable to maintain six (6) feet of distance from other individuals inside the covered premises."

In the same revision, Section 4l designated that the employer has "the responsibility to provide a reasonable accommodation where required by law." This echoes federal, state and local laws, which mandate that employers must provide reasonable accommodations to customers and employees who require them because of a disability, pregnancy, or a sincerely held religious belief unless providing a reasonable accommodation would cause a direct threat to other customers or employees, or impose an undue hardship. This requirement now extends to customers and employees who may require a "reasonable accommodation" from the Key to NYC vaccination requirements.

Ann Wilson at City Winery NYC on August 23; City Winery was a pioneer among music clubs in instituting vax-only entry 

While Ann Wilson was performing in City Winery's main room downstairs, Shawn Mullins performed in the smaller Loft upstairs on August 23, where the same vax-only rule applied

What does "reasonable accommodation" mean?

Customers and employees of a business covered by the vaccination-only mandate of the Key to NYC have rights under the New York City Human Rights Law (NYCHRL). According to the city's Commission on Human Rights, business owners covered by the Key to NYC cannot scrutinize anyone's proof of vaccination more closely than proof provided by other people based on the perception that people of a certain race, national origin, or religion are less likely to be vaccinated. The employer cannot require proof of vaccination only from older people or people with disabilities based on the belief that COVID-19 is more dangerous for them. Employers cannot refuse to accept certain types of valid proof of vaccination, such as official immunization records from countries outside the United States or photographs of CDC vaccination cards.

Customers have the right to a reasonable accommodation to enable them to access the services of the business if they are unable to show proof of vaccination due to a disability. However, the business does not have to provide a reasonable accommodation if doing so would create a direct threat to other customers or employees of the business, or impose an undue hardship on the business.

JP Saxe performed a surprise show at Rockwood Music Hall, Stage 2, on August 24; the venue has reinstated its vax-only policy

Breakfast Special at the Bitter End on August 26; the venue's vaccinations policy is now uniform with all other music venues in New York City

If customers are unable to show proof of vaccination because of a disability, the business must engage with them in a cooperative dialogue, or a good faith discussion, to see if a reasonable accommodation is possible. Reasonable accommodations can take many forms. For example, a customer could purchase food to take with them, join a virtual exercise class, or speak with a sales representative by phone. Businesses should not ask customers for proof of a disability, or ask invasive questions about the nature or the disability.

Employees have the right to a reasonable accommodation to enable them to perform their job if they are unable to show proof of vaccination because of a disability, pregnancy, religious belief, or their status as a victim of domestic violence, stalking, or sex offenses. However, the employer does not have to provide a reasonable accommodation if doing so would create a direct threat to other customers or employees of the business, or impose an undue hardship on the business. If an employee needs an exception to the vaccine requirement or additional time to provide proof of vaccination due to one of the reasons listed above, the employer must engage the employee in a cooperative dialogue, or a good faith discussion, to see if a reasonable accommodation is possible. Reasonable accommodations can take many forms. For example, an employee could work remotely, perform their job duties outside the indoor portion of the premises or in an area isolated from other employees. If there is no reasonable accommodation that would allow an employee to perform their job duties safely, the employer may offer the employee a leave of absence until the employee is able to show proof of vaccination or the workplace becomes otherwise safe for the employee to resume work.

Grant Stewart at the Cellar Dog on August 19; the new venue opened under the Key to NYC (photograph by Seth Okrend)

New Moon Acoustic Blues at Terra Blues on August 27; Terra Blues has has a vax-only policy since reopening

If an employee seek a reasonable accommodation because of a medical condition or due to pregnancy, the employer can request a note from a medical provider supporting the employee's inability to show proof of vaccination. If the employee seeks a reasonable accommodation because of religious beliefs, the employer can request supporting documentation if the employer has an objective basis to question the sincerity of the stated religious basis for the employee's inability to show proof of vaccination. If the employee seeks a reasonable accommodation because of the employee's status as a victim of domestic violence, sex offenses, or stalking, the employer can request a note from a related service provider supporting the employee's inability to show proof of vaccination.

"Reasonable accommodations" do not cover employees who simply do not want to get vaccinated. Employees are only entitled to reasonable accommodations for needs related to their own disabilities, pregnancies, religious beliefs, or status as a victim of domestic violence, stalking, or sex offenses. Similarly, only customers who are unable to show proof of vaccination due to their own disability are entitled to a reasonable accommodation under the NYCHRL.

Danny's Devil's Blues at Otto's Shrunken Head on August 22; since moving recently from outdoor service to indoor service, the venue is required to check for proof of vaccination.

Rob Mastrianni at the Anyway Café on August 29; the venue has outdoor space for the unvaccinated

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The Manhattan Beat covers New York City's live music developments as they happen. All photographs are by Everynight Charley Crespo, except when noted otherwise. For a list of Manhattan venues that are presenting live music regularly, swing the desktop cursor to the right and click on the pop-up tab "Where to Find Live Music." For a listing of upcoming concerts for live audiences, visit The Manhattan Beat's September 2021 calendar.