Seyfarth Synopsis:  On April 13, 2020, Governor Cuomo issued Executive Order (“EO”) 202.16, requiring employers to provide essential workers with face coverings to wear when in direct contact with customers or the public.

Governor Cuomo initially announced that he was going to issue an executive order requiring employers to provide essential workers with a cloth or surgical facemasks. The EO, issued on Monday, April 13th, specifically provides “[f]or all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public.”  The face coverings must be provided at the employer’s expense.

The provision may be enforced by local governments or local law enforcement as if it were an order pursuant to section 12 or 12-b of the Public Health Law, which provides for civil and criminal liabilities (analysis of which can be found here).  

The requirement goes into effect on Wednesday, April 15th, at 8:00 p.m.

While New York’s announcement followed closely on the heels of similar orders in New Jersey (see our alert here) and Los Angeles (see our alert here), New York’s order is much more limited and differs in important ways.

• Unlike New Jersey, New York does not require employees to wear face masks while on the employer’s premises. Rather, New York’s EO only requires employees to wear face coverings when in contact with customers or members of the public.  However, it may be that this is a distinction without a difference as other employees are also “members of the public.”  
• Unlike New Jersey and Los Angeles, New York does not include a requirement that customers wear face masks.
• Unlike the Los Angeles Order, which explicitly covers employees as well as “third-party workers, and others performing work or services at certain Essential Businesses,” New York’s EO only refers to employees. However, as the EO does not define “employees,” and its goal is to address public health concerns, best practices suggest that companies which regularly utilize independent contractors should ensure those independent contractors are in compliance.
• Nor does the New York EO address the type of face mask required or provide guidance in terms of washing or discarding of facemasks. From a wage and hour law perspective, employers should ensure they are complying with the New York Wage Order applicable to their industry and possible laundering requirements.