On Friday, December 10, 2021, New York State Governor Kathy Hochul announced that beginning today, December 13, 2021, masks must be worn in all indoor public places unless the business implements a COVID-19 vaccination requirement as a condition of entry.
As indicated by the New York State Department of Health ("DOH") Commissioner Mary Bassett's Determination on Indoor Masking, this new mask or vaccination requirement applies to all indoor public places that are not a private residence.
Further clarification from the DOH established that office spaces are specifically included in this requirement. If an office space does not require proof of being fully vaccinated for COVID-19 as a condition of entry, everyone in the office — regardless of vaccine status — must wear a mask at all times, except for brief periods when eating or drinking or when alone in an enclosed room.
This requirement will remain in effect until January 15, 2022, at which time the requirement will be re-evaluated and next steps will be determined.
Businesses that choose to require proof of vaccination must ensure that anyone who is twelve years of age or older is fully vaccinated before entering the indoor public space. Fully vaccinated is defined as fourteen days past an individual's last vaccination dose in their initial vaccine series, whether it be fourteen days past the second shot of a two-dose vaccine, such as the Pfizer-BioNTech or Moderna vaccine, or fourteen days past the shot of a one-dose vaccine, such as the Johnson & Johnson/Janssen vaccine. Businesses that choose proof of vaccination must also require persons ages five through eleven to show proof of one dose of a COVID-19 vaccination.
Boosters are not required under the new New York State-wide rule at this time. This mask or vaccination requirement will be enforced by local health departments. Those found in violation, including businesses or individuals themselves, could receive a maximum civil penalty of $1,000 per violation.
The New York State mask or vaccination requirement applies to all individuals who enter indoor public spaces, including employees, clients, or any visitors. Whether a business chooses to apply a mask requirement or a COVID-19 vaccination requirement, the business must ensure the same requirement is followed by all.
The DOH made clear that a business cannot allow fully vaccinated employees or visitors to be unmasked, while also allowing unvaccinated or partially vaccinated individuals to enter and wear masks.
As a practical matter, this means that an office that elected the vaccine option effectively converts its space to the mask requirement if, for example, it permits someone to enter who is not vaccinated because they were granted a medical reasonable accommodation. In that circumstance, everyone would have to wear a mask regardless of vaccine status.
Similarly, a business cannot allow employees or visitors to be unmasked when everyone in the space is fully vaccinated, but then require those in the space to wear a mask when an individual who is unvaccinated or partially vaccinated enters. While no specific guidance has been issued regarding allowing entry to an indoor public space to an individual who has an exemption to an existing COVID-19 vaccination mandate as a reasonable accommodation for a disability or sincerely held religious belief, the DOH's guidance to-date indicates that if such an individual is permitted entry, all those in the space must be masked.
Governor Hochul's state-wide requirement follows the earlier announcement from New York City Mayor Bill de Blasio that all New York City private-sector employers will be required to impose a COVID-19 vaccination mandate on their employees beginning December 27, 2021. Formal guidelines on New York City's vaccination requirement are set to be issued on December 15, 2021.
Employers who operate public indoor spaces must promptly implement a mask or COVID-19 vaccination policy for their businesses. Beginning December 27, 2021, private-sector employers in New York City must comply with both New York City's and New York State's vaccination requirements. Employers should continue to monitor for formal guidelines regarding New York City's COVID-19 vaccination requirement that are expected to be issued in the coming days.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
