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LawFlash

New York Issues Broad Orders and Guidance on Face Covering Requirements

April 16, 2020

Following a recent trend, New York Governor Andrew Cuomo has issued two executive orders requiring individuals to wear face coverings when near other people. One order requires all customer/public-facing employees to wear face coverings and requires employers to provide these face coverings at no cost to employees. The other order requires all individuals in a public place to use a mask or face covering.

Executive Order 202.16

On April 12, 2020, Governor Cuomo signed Executive Order 202.16. Under this order, effective April 15, 2020 at 8:00 pm, all employees continuing to work in-person at an employer’s workplace (i.e., employees of essential businesses or entities) are required to wear facemasks or face coverings when in direct contact with customers or members of the public. The order directs businesses to provide these face coverings at their own expense and at no cost to the employee.

Executive Order 202.17

On April 15, 2020, Governor Cuomo signed another executive order, Executive Order 202.17. Under this subsequent order, which becomes effective April 17, 2020 at 8:00 pm, all people over age two who are medically able to tolerate wearing a face covering are required to wear a mask or cloth face covering over their nose and mouth when in a public place and unable to maintain, or when not maintaining, social distancing. This subsequent order does not provide any guidance on how individuals should obtain adequate face coverings. Although not stated in this order, Governor Cuomo stated that if the public at large does not follow this order, then the state may begin issuing civil fines for noncompliance.

New York Department of Health Guidance

On April 14, 2020, the New York Department of Health published Interim Guidance on Executive Order 202.16 (the Guidance). Importantly, the Guidance expands the requirement to provide facial coverings for workers to contractors, including independent contractors – not just employees.

The Guidance clarifies that face coverings include cloth (e.g., homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields. Employees may choose to use their own face coverings, including more protective face coverings than provided by the employer, but cannot be required to do so.

Additionally, the Guidance explains that employers have discretion to determine what “direct interaction” with the public means; though, at a minimum, direct interaction with the public includes “any employee who is routinely within close contact (i.e., six feet or less) with members of the public.” Notably, the Guidance implies that an employee who has only occasional or irregular contact with members of the public is not covered by the face covering requirement. Yet, prior guidance by the state requires businesses and entities that provide essential services to implement rules in the workplace that facilitate social distancing (of at least six feet), and to adopt other contamination mitigation efforts such as use of precautionary sanitizer practices.

Employers unable to obtain face coverings can consult with their local emergency management office and can submit a request for face coverings. The Guidance emphasizes, however, that not being able to procure face coverings does not relieve an employer’s obligations to provide face coverings to employees.

The Guidance also directs employees who are unable to wear face coverings and are susceptible to coronavirus (COVID-19) complications based on “Matilda’s Law” criteria (i.e., individuals who are 70 or older or those who have compromised immune systems or underling illnesses) to consult with their employer to consider reasonable accommodations, which may include providing different personal protective equipment, an alternate work location, or an alternative work assignment. If an employee declines to wear a face covering due to a medical reason, the employer cannot request or require the employee to submit medical documentation regarding the reason.

Penalties

Violations of Executive Order 202.16 may result in penalties of $2,000 for each violation. Additionally, willful violators may also be deemed guilty of a misdemeanor.

Analysis

Executive Order 202.16 and the Guidance create a clear requirement for New York employers to provide compliant face covering to employees working in public-facing roles. Although the Guidance provides employers some discretion in determining which employees routinely interact with the public, it also creates a potential added burden in mandating that employers provide face coverings to contractors and prohibiting employers from requesting medical documentation from employees who decline to wear face coverings for a medical reason.

Moreover, the Guidance is notable in that it appears to be the first formal state guidance that (through implication of “Matilda’s Law”) specifically directs individuals who are 70 or older or who have compromised immune systems or underling illnesses to consult with their employers to consider reasonable accommodations. Although the Guidance suggests a few potential accommodations that may apply to such personnel, we encourage employers to engage in the interactive process and cooperative dialogue (as we have previously described in prior guidance) on an individual basis with employees who fit these criteria to determine what accommodation may be appropriate. Additionally, employers should be prepared to address requests for face coverings from essential employees who are encountering the public when commuting to work, although perhaps not in the workplace.

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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 Battaglia
Melissa Hill
Kimberley Lunetta
Douglas Schwarz