Governor Andrew Cuomo announced that effective Wednesday, May 19, 2021, New York State will adopt the Centers for Disease Control and Prevention’s (CDC’s) Interim Public Health Recommendations for Fully Vaccinated People for most businesses and public settings.

On Monday, May 17, New York State announced that, starting Wednesday it would adopt the CDC guidance for fully vaccinated individuals permitting them to remove masks when working indoors, as outlined in our prior LawFlash: CDC Updates Guidance To Permit Vaccinated Workers To Remove Masks In Most Indoor Settings.

GUIDANCE UPDATES

In a press release following the announcement, the governor’s office announced updated business mask rules, business capacity rules, and small- and large-scale event rules, each described below.

Business Mask Rules

Under the new guidance described in the press release, vaccinated individuals will not be required to wear a mask in most settings. However, unvaccinated individuals, under both CDC and New York State guidance, must continue to wear masks.

The new guidance strongly recommends wearing a mask in indoor settings where vaccination status of individuals is “unknown.” The guidance further specifically states that the recommendation applies “across commercial settings, including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among other settings.”

Business Capacity Rules

The new guidance updates New York’s previous guidance that stated, effective May 19, 2021, most business capacity limits will be removed subject to the need to maintain social distancing of six feet between people. Under the new guidance, businesses may eliminate the six feet of required social distancing, and therefore increase capacity, if all individuals within an establishment – or a separate designated part of an establishment – present proof of vaccination status. For areas where vaccination status of individuals is unknown or patrons do not present proof of full vaccination status, individuals must continue to maintain six feet of social distancing. Similar to the guidance on mask wearing, the new guidance states that “[t]his change will apply across all commercial settings, except the exempt settings outlined by the CDC.” Those exempt settings are limited to individuals in correctional facilities and homeless shelters.

Small- and Large-Scale Event Rules

The guidance provides that for small-scale events, defined as those under the current New York State social gathering limit of 250 people indoors or 500 people outdoors, event venues will be able to continue requiring masks and social distancing for all individuals unless all attendees present proof of full vaccination status. Similar to the mask rules described above, the guidance states that all unvaccinated people should still wear masks.

For large-scale events that exceed the state’s gathering limits, event venues will now only be limited by the space available for patrons or parties of patrons to maintain social distancing, provided that:

• Unvaccinated attendees and attendees who have an unknown vaccination status must be spaced six feet apart in assigned sections and must wear masks in indoor event settings, except while seated and eating or drinking.
• Fully vaccinated attendees may be spaced directly next to one another at 100% capacity without observing social distancing in assigned sections that are designated solely for fully vaccinated individuals. Masks are not required for fully vaccinated individuals. Event venues seeking to take advantage of reduced social distancing requirements must verify the vaccination status of all individuals over the age of 16 in these assigned sections.
  • Children under age 12 who are not yet eligible to be vaccinated and those under the age of 16 who have not yet been vaccinated may accompany and be seated with a vaccinated adult in a fully vaccinated section.
• The guidance provides that businesses may obtain proof of full vaccination status at events by establishing a system to view or retain proof of vaccination, which can be demonstrated through paper form, digital application, or the state's Excelsior Pass.

Analysis

Given this new guidance, which is expected to be reflected in forthcoming updates to New York’s reopening rules, employers in New York should understand that they can permit fully vaccinated individuals to stop wearing masks indoors. However, the state “strongly recommends” that individuals wear masks in indoor settings where their vaccination status is unknown. This language can be interpreted to mean that employers should, but are not strictly required, to check the vaccine status of any individual in the workplace before permitting them to remove their masks. On the social distancing guidance, the language is clear that any business seeking to permit vaccinated employees to stop maintaining social distancing must establish a vaccine-only section where everyone in that section shows proof of full vaccination status or require that all individuals entering the premises show proof of being fully vaccinated against COVID-19.

The guidance does not require that employers retain documentation of vaccine status, such as storing vaccine card records, but employers that do not store these records should have a system in place to verify that individuals in the workplace are indeed fully vaccinated. Potential options could include an advance registration system where individuals show proof of vaccination, a requirement that individuals bring proof of vaccination when entering the location, using a digital app, or using the New York-approved Excelsior Pass. Businesses considering removing social distancing and mask requirements for indoor events should review how they plan to comply with the new guidance and communicate in advance with all individuals who will enter the premises in advance about any vaccination status requirements. Finally, businesses should continue to monitor for updates to New York’s reopening rules, as the guidance describes in the press release is not technically binding until it is included in an operative rule or regulation.

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