New York Announces More COVID-19–Related Mandates: To Mask or to Vax?

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On December 10, 2021, New York State Governor Kathy Hochul announced a new mandate requiring that masks be worn in indoor public spaces, unless a covered business has implemented a mandatory vaccination requirement. The mandate goes into effect on December 13, 2021, and will remain in effect until January 15, 2022, at which point the state will reevaluate the need for masking.

The mandate broadly defines “indoor public place” as “any indoor space that is not a private residence”— including all office spaces. Employers with office space that currently do not require proof of vaccination are required, under the mandate, to ensure that employees, regardless of their vaccination status, are masked at all times. Additionally, under this mandate, businesses may not mix and match approaches, but instead must select either the vaccination requirement or the mask mandate for all employees, visitors, patrons, and service providers. For example, businesses may not require that employees adhere to the mask mandate but require customers to comply with a mandatory vaccination policy.

The state’s frequently asked questions (FAQs) publication confirms that, in addition to both public and privately-owned businesses, indoor entertainment venues, shopping centers, common areas in residential buildings, and concert halls, among others, fit within this definition. Previous indoor masking requirements relating to healthcare, adult care facilities, P-12 schools, homeless shelters, correctional facilities, and public transportation, remain in effect pursuant to the New York State Department of Health’s acting commissioner’s December 10, 2021, Determination. The mandate allows exceptions to the masking requirement when employees or patrons are eating, drinking, or alone in an enclosed space. Moreover, the mandate permits businesses and venues, such as restaurant establishments where eating or drinking is an integral part of the business model, to allow patrons to “remove their masks only while they are actively eating or drinking.” Similarly, personal care businesses (such as salons) that do not implement the vaccination requirement may allow patrons to remove their face masks while receiving such services (“e.g., facials, beard trimming, waxing of the upper lip”). The mandate requires employees performing these services to wear face coverings at all times.

Any “indoor public place” requiring proof of vaccination must ensure that anyone at least 12 years old is fully vaccinated before entering. Most recently, as of October 15, 2021, the Centers for Disease Control and Prevention (CDC) considers an individual to be fully vaccinated 14 days past the individual’s last vaccination dose in his or her initial vaccine series. For children ages 5-11, businesses and venues must require proof of at least one dose of the COVID-19 vaccine.

The maximum penalty for a violation of this mandate is a $1,000 fine.

Impact on ‘Key to NYC’ Program

Under the existing “Key to NYC” program, staff and patrons who enter certain types of indoor entertainment, recreation, dining, and fitness establishments are required to have received at least one dose of a COVID-19 vaccine. Effective December 27, 2021, individuals in New York City over the age of 12 will be required to show proof of two doses of the vaccine per the amended Key to NYC program; currently, individuals are required to show proof of only one dose.

Given the state mandate, which considers individuals to be fully vaccinated 14 days past the individual’s last vaccination dose in his or her initial vaccine series, any New York City establishment that currently falls under the Key to NYC program and seeks to admit partially vaccinated patrons (i.e., those with one dose of the vaccine prior to December 27, 2021) must require all patrons and staff to wear masks inside. Of course, and in compliance with the mandate, covered New York City establishments that do not wish to implement the mask requirement may require all individuals be fully vaccinated (i.e., have received two doses of the vaccine) beginning December 13, 2021.

Employers in New York State may want to review the above requirements to ensure that their practices comply with the obligations set forth in the mandate and implement any required policies. Employers may also want to stay updated as New York City is set to promulgate additional guidance this week regarding its recently announced private-sector employer vaccine mandate.

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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