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New York to Implement CDC Guidance on Indoor Mask Use and Social Distancing

May 18, 2021 (Updated May 19, 2021)

Governor Andrew Cuomo announced that effective Wednesday, May 19, 2021, New York State will adopt the Centers for Disease Control and Prevention’s (CDC’s) Interim Public Health Recommendations for Fully Vaccinated People for most businesses and public settings.

On Monday, May 17, New York State announced that, starting Wednesday it would adopt the CDC guidance for fully vaccinated individuals permitting them to remove masks when working indoors, as outlined in our prior LawFlash: CDC Updates Guidance To Permit Vaccinated Workers To Remove Masks In Most Indoor Settings.

Guidance Updates

On May 19, 2021, New York released guidance formalizing the changes initially summarized in a press release following Governor Cuomo’s announcement that fully vaccinated individuals no longer need to wear a mask or maintain social distancing, subject to certain exceptions. 

Business Mask Rules

Under the new guidance, vaccinated individuals will not be required to wear a mask in most settings. However, unvaccinated individuals, under both CDC and New York State guidance, must continue to wear masks.

The press release guidance strongly recommended wearing a mask in indoor settings where vaccination status of individuals is “unknown.” The guidance further specifically states that the recommendation applies “across commercial settings, including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among other settings.” However, the state clarified in the final published guidance that while businesses can request proof of vaccination, it is not required and businesses can rely on self-reporting of vaccination status (e.g., an honor system).

Business Capacity Rules

The new guidance provides that effective May 19, 2021, most business capacity limits will be removed subject to the need to maintain social distancing of six feet between people. Additionally, businesses may eliminate the six feet of required social distancing for fully vaccinated individuals.

In the final guidance published on May 19, 2021, the state created a distinction between businesses that do not congregate individuals in large numbers (such as offices, restaurants, or retail locations) and those that congregate individuals and operate above the state’s social gathering limit of 250 individuals indoors or 500 individuals outdoors (such as sports and entertainment venues, catering halls, or convention centers).

Regardless of business type, for areas where the vaccination status of individuals is unknown, individuals must continue to maintain six feet of social distancing. The new guidance applies across all commercial settings, except the exempt settings outlined by the CDC. Those exempt settings are limited to individuals in correctional facilities and homeless shelters.

Offices, Restaurants, Retailers and Other Businesses Not Operating Mass-Congregate Events

Under the new guidance, businesses that are not congregating patrons in large numbers (defined as under 250 people in a single gathering indoors or 500 people outdoors) and implementing the CDC guidance to remove social distance requirements for fully vaccinated workers can, but are not required to, require proof of vaccination status. The guidance provides that businesses may obtain proof of full vaccination status by establishing a system to view or retain proof of vaccination, which can be demonstrated through paper form, digital application, or the state's Excelsior Pass. However, these businesses also have the option of relying upon self-reporting of vaccine status, such as an honor system approach.

These businesses may permit vaccinated individuals to stop following social distance requirements: a) within the entire establishment; or (b) just in a separate, designated part of the establishment for vaccinated individuals only. The final guidance reflects a change from the initial announcement by the state on May 17, 2021, which provided that all businesses would need to obtain proof of vaccination to relax social distancing standards and also establish specific sections for vaccinated individuals where social distancing was not required. 

Sports and Entertainment Venues, Catering Halls, Convention Centers and Other Businesses Operating Mass-Congregate Events

The guidance takes a different approach with respect to businesses that have patrons attend events above the state’s social gathering limits, specifically event venues, sports competitions, performing arts and entertainment, catering halls, and conventions. Under this guidance, these businesses that seek to implement fully vaccinated sections where social distancing and mask wearing is not required must require proof of vaccination and cannot rely upon an honor system or self-reporting of vaccination status. These businesses can operate up to 100% capacity so long as all attendees are fully vaccinated. Children under age 12 who are not yet eligible to be vaccinated and those under the age of 16 who have not yet been vaccinated may accompany and be seated with a vaccinated adult in a fully vaccinated section.

While the guidance allows these businesses to operate at 100% capacity if everyone is vaccinated, businesses may consider having sections available for unvaccinated individuals to provide options for people who are either uncomfortable or unable to be vaccinated but still seek to attend. In those circumstances, unvaccinated individuals and individuals who have an unknown vaccination status must be spaced six feet apart in designated sections. If the event is indoors, masks are required except while individuals are seated and eating or drinking. If the event is outdoors, masks are generally required, but can be removed while individuals are seated and socially distanced. All attendees at indoor events over the age of four who are not presenting proof of vaccination status must instead present proof of a recent negative COVID-19 test result (i.e., PCR/NAAT within 72 hours or an antigen test within six hours prior to admission). The state does not require businesses to check for proof of recent negative COVID-19 tests for outdoor events.

Analysis

Given this new guidance, employers in New York should understand that they can permit fully vaccinated individuals to stop wearing masks and maintaining six feet of social distancing indoors. Further, businesses that are not operating large events have discretion under this guidance in whether they want to require that individuals present proof of vaccination (which the state expressly permits them to do) or rely on an honor system for self-certification. On the social distancing guidance for large events, the language is clear that any business seeking to permit vaccinated employees to stop maintaining social distancing must establish a vaccine-only section where everyone in that section shows proof of full vaccination status or require that all individuals entering the premises show proof of being fully vaccinated against COVID-19.

The guidance does not require that employers retain documentation of vaccine status, such as storing vaccine card records, but employers that do not store these records should consider having a system in place to verify that individuals in the workplace are indeed fully vaccinated. Potential options could include an advance registration system where individuals show proof of vaccination, a requirement that individuals bring proof of vaccination when entering the location, using a digital app, or using the New York-approved Excelsior Pass. Businesses considering removing social distancing and mask requirements should review how they plan to comply with the new guidance and communicate in advance with all individuals who will enter the premises in advance about any vaccination status requirements. Finally, businesses should continue to monitor for updates to New York’s reopening rules, as the guidance describes in the press release is not technically binding until it is included in an operative rule or regulation.

Return to Work Resources

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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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
Douglas T. Schwarz
Kimberley E. Lunetta
Leni D. Battaglia
Melissa D. Hill