Despite Anticipated Rollbacks, New York State Issues Revised COVID Guidance for Certain Industries

Seyfarth Shaw LLP

Seyfarth Synopsis: Following Governor Cuomo’s announcement on June 7, 2021 that the State would be rolling back much of the industry-specific guidance upon hitting a 70% vaccination rate, as discussed in more detail here, between June 7 and June 9, 2021, the State published updated industry-specific guidance for offices, commercial building management, indoor and outdoor food services, camp programs and child care, in-person Pre-K through Grade 12 schools, and religious and funeral services. The key updates include incorporation of the recently revised social distancing and mask wearing requirements for vaccinated and unvaccinated individuals, as well as updated screening questions.

Employers have been eagerly awaiting publication of revised industry-specific guidance incorporating many of the recent changes to the COVID-19 rules, namely updated social distancing and mask requirements for those who are fully vaccinated as discussed in more detail here. These changes confusingly followed on the heels of Governor Cuomo’s June 7 announcement that the State would be rolling back most industry guidance upon reaching a vaccination rate of 70% for all adults in New York. (Achievement of this threshold appears imminent, per the State’s COVID-19 Vaccination Progress to Date Tracker.)  Between June 7 and June 9, 2021, the State quietly published revised industry-specific guidance for offices, commercial building management, food service, camps and child care, Pre-K through grade schools with in-person instruction, and religious and funeral services. We anticipate additional updates to other industry guidance will follow.

As expected, the key changes include revising the social distancing and face covering rules, and incorporating the State’s adoption of the CDC’s guidance for social distancing and mask requirements for those who are vaccinated, which can be found here. The changes also include revised mandatory daily screening questions.

Office Guidance & Commercial Building Management Guidance:

The updated Office guidance can be found here. Note that the Office guidance does not apply to medical offices, but any other business with employees who perform office-based work should review the guidance. The updated Commercial Building Management guidance can be found here.  Because the changes are effectively the same, the following is a high level overview for both sets of guidance:

  • Capacity is limited by the space available for employees to maintain the required social distance as set forth in the State’s guidance. Employers may allow for fully vaccinated employees to be spaced at full capacity without six feet of distance within either the entire establishment or in a separate, designated part of the establishment. Business are to ensure that unvaccinated people maintain social distancing if unmasked, including six feet in all directions at work stations. If such distance cannot be guaranteed, such as in common areas, face coverings and/or physical barriers are required in accordance with OSHA guidelines. The guidance requires employers to post signage enforcing masking and social distancing requirements, but provides that distinctions can be made for fully vaccinated individuals.
  • Employers may choose to continue to require masks and social distancing for employees, even where such requirements are not legally mandated.
  • Proof of vaccination status can be shown through paper form, digital application, or the State’s Excelsior Pass.
  • For elevators, or in situations where vaccination status is unclear or individuals are unvaccinated, social distancing and face coverings are required. To accomplish this, responsible parties can: post signage requiring unvaccinated individuals to social distance and wear face coverings, provide separate elevators for vaccinated and unvaccinated individuals, or enforce a maximum capacity to maintain social distancing.
  • The guidance for daily screening and testing has been revised. Specifically, the guidance has expanded the methodology by which health screenings may be performed (to include signage, at point of entry, or by e-mail/website, in addition to the existing methods of telephone, or electronic survey prior to or upon arrival), and has revised the requirements for health screenings, which should now include questions on whether the individual:

(1) is currently experiencing, or has recently (within the past 48 hours) experienced, any symptoms of COVID-19.

- The guidance now explicitly notes that some symptoms occur with pre-existing medical conditions, such as allergies or migraines, that have been diagnosed by a health care practitioner, and that in those cases individuals should only answer ‘yes’ if symptoms are new or worsening. (Employers should take care not to elicit disability-related or genetic information via the health questionnaire).

(2) has had "close contact" with a person who is positive for, or is suspected to have, COVID-19 within 2 days before the individual’s symptoms developed or if asymptomatic, 2 days before the positive test, in the 10 days prior to screening.  The New York State Department of Health advises that close contact is being within six feet of an individual for 10 minutes or more within a 24-hour period. 

However, those who are fully vaccinated (defined as 14 days after completion of the vaccine series) or who have recovered from either suspected or lab-confirmed COVID-19 within the past three months need not quarantine following close contact and thus can be permitted to enter the workplace. (Vaccinated individuals must monitor for COVID-19 symptoms for 14 days following exposure.) Therefore, employers may want to consider incorporating vaccination status and/or recovery from COVID-19 in the past three months in this daily screening question.

(3) has tested positive for COVID-19 through a diagnostic test in the past 10 days.

Food Service Guidance:

The updated Food Service guidance may be found here.  The following is a high level overview of the changes.

  • Notably, the guidance now makes clear that per Gov. Cuomo’s June 7th announcement,  the industry specific guidelines — including capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing — will become optional for Food Services establishments upon reaching the 70% vaccination rate, meaning restaurants and other covered establishments are permitted to implement the CDC guidance wherein fully vaccinated individuals no longer need to adhere to mask and social distancing requirements. Large-scale event venues (i.e., indoor venues with greater than 1,500 attendees and outdoor venues of 2,500 attendees) will continue to be subject to restrictions even after they are lifted for other types of businesses.
  • Employees of such establishments will be required to wear face coverings and social distance at all times, unless fully vaccinated.
  • Proof of vaccination will be required for employers to eliminate the social distancing requirements and can be in paper form, a digital application, or the State’s Excelsior Pass.
  • For settings that do not typically congregate patrons and/or operate below the social gathering limit, employers can also rely on self-reporting for proof of vaccination.
  • Consistent with the State’s implementation of the recent CDC guidance, masks will still be required for unvaccinated patrons.
  • In circumstances where the vaccination status of all parties is unknown, or in unvaccinated sections of an establishment, a social distance of six feet must be maintained.
  • Food Services businesses not following CDC guidance eliminating social distancing for fully vaccinated individuals are still required to ensure that indoor tables with seating for customers are separated by a minimum of six feet in all directions. Wherever distancing is not feasible between tables, businesses must install physical barriers between such tables that are at least five feet tall.
  • Businesses are now permitted to allow customers to sit and be served at bar areas, provided social distancing is maintained when vaccination status is unknown or negative.
  • Capacity at events (including residential events) may now exceed the State’s social gathering limits, as long as the event complies with additional required guidance for large events, which includes:

- Limiting capacity to the space needed to ensure social distancing, notifying the local health department, collecting contact tracing information, conducting screening, testing, or requiring proof of vaccination, and conducting a health screening to assess possible exposure to and symptoms of COVID-19.

The State also updated its guidance for New York City Food Services establishments, which includes requirements for ventilation and air filtration.

Seyfarth will continue to track what has become a rather confusing transition in the lifting of COVID-19 restrictions across New York.  Please contact your Seyfarth attorney with any questions you may have. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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