New York State to Impose Mask Mandate in All Indoor Public Places December 13

New York Governor Kathleen Hochul announced a mandate requiring that all businesses and venues require employees and patrons in public indoor spaces to wear masks, unless the business or venue requires all individuals on the premises to be fully vaccinated. The mandate, which applies to private businesses, will go into effect on December 13, and last until January 15, 2022, at which time it will be reevaluated.

Key Compliance Deadlines, Requirements, and Takeaways

Governor Hochul announced this new masking requirement (the Mandate) in a press release and press conference on December 10. The Governor emphasized that the Mandate is meant to (1) align with the CDC’s recommendations for communities with substantial and high transmission, (2) address the state’s increasing weekly seven-day case rate and increased hospitalizations, and (3) counteract the anticipated winter surge of COVID-19, including as a result of the upcoming holiday season. The order is likely to be issued before December 13 and businesses should review the final guidance to understand exactly what will be required.

Mask Mandate

The Mandate specifically applies to all individuals age two and older, regardless of vaccination status. The announcement did not specifically address whether the Mandate applies to contractors or visitors who are not patrons or employees. Presumably, this issue will be clarified in the final order and any forthcoming guidance.

Proof of Vaccination Requirement

Businesses that currently enforce a vaccination requirement for entry will be exempt from the new Mandate, if such requirement (1) applies to both employees and patrons, and (2) requires all persons entering the premises to be fully vaccinated with any vaccine authorized by the US Food and Drug Administration (FDA) or the World Health Organization (WHO).

The Mandate’s definition of “fully vaccinated” does not currently include a booster shot, but it does require persons to have received the last dose in their initial vaccine series (i.e., two weeks have passed since the second dose of a two-dose series such as the Pfizer or Moderna vaccine, or the first dose of a single-dose vaccine, such as the J&J Janssen vaccine). Under the Mandate, businesses and venues that require vaccination for entering can accept proof of vaccination provided via Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC vaccination card.

Unanswered Questions under the Mandate

The governor’s press release and press conference leave significant, unanswered questions applicable to many businesses, including the following:

• Will there be exemptions or carve-outs for
  • unvaccinated individuals who perform in-person work and who have been granted an exemption to the business’ vaccine mandate, such as a reasonable accommodation (e.g., for medical or religious reasons)?
  • individuals who maintain social distance while working; work alone in an enclosed area (such as an office or cubicle with glass dividers); attend a meeting in a conference room where everyone is vaccinated; or are actively eating or drinking?
• Will there be any specific requirements regarding recordkeeping or postings for businesses implementing a vaccination requirement?
• Will the Mandate require verification of vaccination status for all patron-visitors, non-patron visitors, guests, and contractors?

Although the final order will likely address some of these questions, unless there is clarity on potential exemptions, the Mandate appears to state that if any unvaccinated employee or visitor is onsite, everyone on the premises must wear a mask at all times.

Enforcement

Local health departments are being asked to enforce these rules. Violations will include both civil and criminal penalties, including fines of up to $1,000 per violation.

Analysis Next Steps

While awaiting the final order, employers should consider, as a best practice:

• surveying the workforce to determine the vaccination status of all employees working in person and obtaining proof of their vaccination (if considering allowing employees to work without wearing masks);
• placing a poster or notice on the premises so that individuals entering understand they are required to wear masks pursuant to the new state law;
• reviewing protocol for ensuring that individuals entering the premises are vaccinated or, if not requiring them to be vaccinated, ensuring they wear face coverings;
• reviewing company policies on reasonable accommodations and establishing a process for employees to request an accommodation (if mandating vaccination);
• determining how to enforce mask wearing—to the extent required—of patrons;
• continuing to monitor additional guidance from the state; and
• reviewing which positions can work remotely, as the new rules only apply to in-person work.

How We Can Help

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on vaccine restrictions, return to work requirements; policy templates and guidelines for key topics such as vaccine mandates, mask requirements, and handling accommodation requests. If you need assistance with any of these issues, our lawyers stand ready to help. Please contact the authors of this LawFlash, or your primary Morgan Lewis contact.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Leni D. Battaglia
Ashley J. Hale
Melissa D. Hill
Daniel A. Kadish
Douglas T. Schwarz

Orange County
Daryl S. Landy

Philadelphia
A. Klair Fitzpatrick

Washington, DC
Sharon P. Masling