Seyfarth Synopsis: On June 15, 2021, Governor Cuomo announced that the State would be rolling back much of the industry-specific COVID-19 guidance as the State has hit its goal of a 70% adult vaccination rate, as discussed in more detail here. Effective immediately, this key change to New York's COVID-19 strategy provides welcome relief for businesses and industries who have struggled to comply with the State's ever-changing COVID-19 industry guidance.
According to the State's June 15, 2021 press release, the health guidance and New York Forward industry specific guidelines, enacted at the beginning of the COVID-19 pandemic, and updated frequently throughout, are no longer controlling, effective immediately. The preexisting guidance on "social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing" is no longer mandatory in most commercial settings, with one key exception. The lifting of restrictions applies to most sectors, including retail, real estate, offices, food services, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services.
One key rule remains in place, however. Masks are still required for those who are unvaccinated, as New York is still following CDC recommendations.
The State's health guidelines also remain in place for large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings per CDC guidelines. "Large scale indoor event venues" are those indoor venues that can hold more than 5,000 attendees. Even those locations will enjoy some relief, however, as masking and social distancing requirements can be eliminated for fully vaccinated workers and visitors. Further, those who have tested negative in a recent COVID-19 test need not adhere to masking and social distancing guidelines, allowing large indoor venues to open at 100% capacity if all attendees are either fully vaccinated or provide proof of a negative test.
Counties, cities, and businesses may still choose to implement their own restrictions or continue to apply some or all of the industry-specific guidelines. The State made clear that businesses are authorized to require social distancing and masking if they choose, regardless of vaccination status, as long as any mask requirements remain in compliance with any applicable state and federal laws, such as the Americans with Disabilities Act.
Separately, although the NY Forward Safety Plan is no longer required, employers should consider the HERO Act's impending requirement for safety protocols, as discussed here, and incorporate the DOL's model plan or a compliant plan in accordance with the Act.
Employer Takeaways
As increasing numbers of people receive the COVID-19 vaccine, New York employers have far more freedom to establish practices best suited for their operations, as opposed to rules mandated by the state. Employers should review their COVID-19 policies to determine what changes should be made in light of the near elimination of the State's industry guidance, but in recognition of obligations that may be created by OSHA, the HERO Act, and best practices. Seyfarth lawyers are available to assist with addressing these considerations.
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