As the COVID-19 vaccine rollout continues into summer, states are beginning to ease their coronavirus-related restrictions in favor of new, more flexible guidelines for vaccinated individuals. In a sampling of the similarities and differences in guidance, this alert covers recent changes in New York and Illinois.
New York Relaxes Various Restrictions
On May 19, New York joined several other states in removing a number of restrictions in light of its vaccination success. We address below notable changes to COVID-19 mandates of which New York businesses and employers should be aware.
Masks Are Optional
New York removed the face covering requirements for fully vaccinated patrons and employees in most public and business settings. In order to ascertain vaccination status, businesses may require proof of vaccine (via vaccination card or a “passport” that New York offers) or rely on an honor system of “self-reporting.” However, unvaccinated individuals are required to continue wearing masks, and both the state and CDC continue to recommend masks for those who choose not to disclose their vaccination status. Any employer requesting proof of vaccination status of its employees should note that this will not be considered a medical inquiry (although physical copies of proof of vaccination should be kept confidential).
Social Distancing is Optional
After more than a year of strict capacity limits and social distancing, businesses will enjoy much more flexibility in this area as well. Under the new guidance, most capacity limits are lifted so long as social distancing remains practicable. In alignment with the mask guidance, social distancing is no longer required for fully vaccinated individuals who self-report or present proof of vaccination, but social distancing requirements remain in place for unvaccinated individuals and those whose vaccination status is undisclosed or unknown.
Employers may require proof of vaccination for employees before permitting a return to in-person work. However, employers should be aware that they must separately evaluate and reasonably accommodate individuals who remain unvaccinated due to medical reasons or sincerely held religious beliefs. Employees who remain unvaccinated for these reasons are protected under state and federal anti-discrimination laws and employers should include them in existing anti-harassment and discrimination policies. Note that employers are not required to accommodate individuals who remain unvaccinated by choice. It is undetermined how many employers will actually mandate vaccinations or require proof as a condition of continued employment.
Large Venues and Entertainment Arenas
For businesses that hold gatherings above the state's social gathering limits, such as event and sports venues, performing arts and entertainment facilities, and conventions, proof of vaccination will be required in order to lift pre-existing requirements. Masks and physical distance are optional for fully vaccinated individuals who supply proof of vaccination. The honor system of vaccination status does not apply to these venues, and a vaccine card or passport will need to be shown upon entry. Venues may institute “vaccinated” sections for patrons who can present proof of vaccination. Notably, 100% operating capacity is permitted if all attendees are vaccinated.
As with guidance for other businesses, unvaccinated individuals and those with an unknown vaccination status must maintain social distancing and wear masks indoors. Masks are optional outdoors for these individuals when seated and physically distanced.
Continued Hygienic Procedures
Despite the loosened requirements, businesses should maintain current hygienic standards such as hand sanitizing stations, masks, and COVID-19 signage in the workplace. Notably, the loosened requirements do not apply to public transit, homeless shelters, correctional facilities, healthcare settings, nursing homes, and school setting prior to pre-K.
Illinois and Chicago Revise Mask, Distancing Rules For Vaccinated Individuals
Both the State of Illinois and City of Chicago recently lifted their respective mask mandates in line with the latest guidance from the CDC. On May 17, 2021, Illinois Gov. J.B. Pritzker signed Executive Order 2021-10, declaring that fully vaccinated individuals are no longer required to wear a face covering in most settings. One day later, the Chicago Public Health Department (CPHD) amended its COVID-19 “Bridge Phase” Order 2020-09 to align with the updated State order for fully vaccinated persons. Both the State and City orders define “fully vaccinated” as an individual who is two weeks past their second dose of a two-dose COVID-19 vaccine series or two weeks past a single-dose vaccine.
Face Covering Regulations
Fully vaccinated people are no longer required to wear a mask in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. However, these individuals must continue to wear face coverings consistent with CDC guidance, including in healthcare settings, schools, correctional/congregate care settings, on public transportation, and in City of Chicago buildings.
Occupancy and Social Distancing
The updated guidance establishes new capacity limits for businesses, expanding the gathering size for various settings and activities that were either not permitted or allowed previously. Capacity restrictions under the new protocols by setting include:
- Restaurants and Bars. All businesses that offer food or beverages for on-premises consumption are still required to space tables six feet apart, but the capacity limit has been increased to 75%. For standing areas, the State restricts indoor capacity to 30% and outdoor at 50%. The City, however, does not differentiate between indoor and outdoor standing room, limiting all standing room capacity to 25%. Both the State and City can increase table or party size above the previous limit of 10 if all patrons age 16+ at that table or within that party are fully vaccinated.
- Fitness and Exercise Facilities. Fitness and exercise gyms can now operate at a maximum of 60% capacity. Indoor group fitness classes are capped at 50 people, while outdoor group fitness classes can have a maximum of 100.
- Office Buildings. Office buildings can now have 60% capacity. Along with other continued safety requirements, employers in office buildings must ensure all employees who are not fully vaccinated practice social distancing and must take appropriate additional public health precautions in accordance with guidance issued by the Illinois Department of Commerce & Economic Opportunity (DCEO).
- Retail Stores. Retailers and merchandisers, such as grocery stores, hardware stores, clothing stores, pharmacies, and department stores, are limited to 60% capacity.
Regardless of the setting, Illinois businesses that choose to take advantage of the new mandates to increase capacity are required to verify that patrons are fully vaccinated. While there is no uniform proof of vaccine, businesses may develop methods to evaluate authenticity of the vaccination verification provided to them. It is recommended that businesses communicate in advance with all individuals who will enter the premises about any vaccination status requirements. Moreover, an employers' general duty to maintain a safe workplace continues to apply and should be considered before implementing any changes to customer mask requirements.
Under the new changes, employers throughout Illinois who are considering removing face covering requirements for fully vaccinated employees should know that they are required to confirm that an employee is, in fact, fully vaccinated prior to granting their request to go maskless. This can be accomplished by requiring employees to present proof of vaccination or by requiring that employees certify that they are fully vaccinated. Notably, the Chicago ordinance requires that employers have all employees who are reporting to the workplace self-certify each day or shift that they are free of COVID-19 symptoms.
While vaccinated people no longer need to wear a mask or social distance under the new guidelines, all employers must:
- ensure that employees who are not fully vaccinated practice social distancing and wear face coverings when social distancing is not always possible;
- ensure that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing; and
- ensure that all visitors (customers, vendors, etc.) to the workplace who are not fully vaccinated can practice social distancing; but if maintaining a six-foot social distance will not be possible at all times, encourage those visitors to wear face coverings; and
- continue to take all necessary steps to protect employees and customers by ensuring that any return to work plans adhere to all applicable public health guidance.
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