Governor Andrew Cuomo announced on June 15 that the State of New York reached its goal of 70% of adult New Yorkers receiving at least one dose of a COVID-19 vaccine. As anticipated based on prior announcements, Governor Cuomo stated that almost all applicable business operating requirements and guidance from the state no longer were mandatory. However, the state will continue to follow guidance from the Centers for Disease Control and Prevention and require unvaccinated individuals to continue wearing face coverings and maintaining social distancing while indoors.
On June 15, 2021, New York Governor Cuomo announced that more than 70% of New Yorkers aged 18 years and older have received at least the first dose of a COVID-19 vaccine and that the rate of new COVID-19 cases in the state is now the lowest in the nation. In accordance with his earlier announcement, Governor Cuomo confirmed that New York’s COVID-19 restrictions and New York Forward industry-specific guidelines—which together set forth social gathering limits, capacity restrictions, and requirements related to social distancing, cleaning and disinfection, health screening, and contact information for tracing—are all now optional for almost all businesses. Examples of businesses and workplace settings no longer subject to COVID-19 operating requirements include retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops, and personal care services, among other commercial settings.
While the lifting of these COVID-19 restrictions signals New York is entering its “reimagined normal” as noted by Governor Cuomo, a few limitations do remain. Specifically, and consistent with Centers for Disease Control and Prevention (CDC) guidance, masking requirements remain in place for unvaccinated individuals while they are indoors as well as when they are in large-scale event venues, pre-K to grade 12 schools, homeless shelters, correctional facilities, nursing homes, and healthcare settings and on public transit.
The removal of most business operating restrictions and requirements across New York means that employers may choose to lift some or all of the previously required workplace restrictions and measures related to COVID-19. Employers should keep in mind that while any updated New York industry-specific guidance (including the recently updated Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency) is no longer mandatory, New York still considers the guidance to reflect best practices. Employers may want to continue taking certain workplace safety and health precautions for a variety of reasons, but now have greater discretion and flexibility to implement safety practices that are workplace specific than existed under the broadly applicable state rules.
Employers can expect future guidance to continue to distinguish between vaccinated and unvaccinated employees, and employers should consider whether to retain documentation of an employee’s vaccination status if they will permit vaccinated workers to remove masks and stop maintaining social distancing. As always, such records must be treated as confidential and maintained in a secure location separate and apart from the employee’s personnel files. Employers may also wish to consider the comfort level of their employees in communicating the removal of restrictions and note that some employees may feel more comfortable continuing to wear masks or socially distance, even if they are fully vaccinated.
Moreover, employers may opt to require masking and social distancing for employees and visitors within the premises, regardless of vaccination status. If businesses do choose to keep in place any of the now-optional COVID-19 reopening measures, they should consider how to clearly communicate their practices to all individuals who will enter the premises—whether via signage, email, or website posting.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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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
Douglas T. Schwarz
Kimberley E. Lunetta
Melissa D. Hill