Ring of Keys: NYC’s Proof of Vaccination Program

On August 17, 2021, the Key to NYC program, which requires proof of vaccination for indoor activities in New York City, including attending theatrical and other performing arts events, went into effect.  Under the program, individuals age 12 and older are required to show proof that they have received at least one dose of a COVID-19 vaccine in order to attend not only NYC-based performing arts, but all indoor activities, including restaurants and bars, as well as movie theaters, bowling alleys, museums and galleries, sports arenas and stadiums, gyms, dance studios, and fitness classes.  Proof of vaccination includes demonstration via Excelsior Pass or NYC COVID Safe App, CDC Vaccination Card, or NYC Vaccination Record.  Enforcement of the program is slated to begin on September 13th at which time businesses that do not comply with the policy will be subjected to fines. Separate from the Key to NYC program, Broadway’s theater owners and operators confirmed in late July that they will require theatergoers to be vaccinated against COVID-19 and wear masks in order to attend performances, with the exception of children under age 12 not yet eligible for vaccination, who will be allowed to show negative testing for COVID-19 instead.

The Key to NYC program not only applies to those attending entertainment venues, but also to those working at them, including full or part-time employees, interns, volunteers, and contractors.  Thus, under the program actors, musicians, stage managers, and ushers over the age of 12 must be vaccinated.  However, last week on August 20th, Mayor de Blasio of New York revised the program through execution of Emergency Executive Order No. 226 as it relates to exemptions for, amongst others,  nonresident performers.   Specifically, the exemption as revised applies to “[a] nonresident performing artists 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.”  The exemptions also apply to non-resident professional athletes.  However, as drafted, the exemptions require the exempted to “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.”  Some musicians, performers, and athletes will not be able to perform their job functions and maintain the distance required or wear masks given the practical nature of their work, and so it seems unlikely that some nonresident artists (or athletes) would be able to take advantage of these exemptions even absent of other applicable industry or venue-specific restrictions requiring vaccination.  It also remains to be seen how the Key to NYC program will address challenges from unvaccinated individuals who claim that forced vaccinations impinge upon legal rights to avoid discrimination from public accommodations, where they have alleged that they cannot get the COVID-19 vaccine due to a disability or sincerely held religious beliefs.

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