New York Governor Kathleen Hochul announced a mandate requiring that all businesses and venues require employees and patrons in public indoor spaces to wear masks, unless the business or venue requires all individuals on the premises to be fully vaccinated. The mandate, which applies to private businesses, will go into effect on December 13, and last until January 15, 2022, at which time it will be reevaluated.
Governor Hochul announced this new masking requirement (the Mandate) in a press release and press conference on December 10. The Governor emphasized that the Mandate is meant to (1) align with the CDC’s recommendations for communities with substantial and high transmission, (2) address the state’s increasing weekly seven-day case rate and increased hospitalizations, and (3) counteract the anticipated winter surge of COVID-19, including as a result of the upcoming holiday season. The order is likely to be issued before December 13 and businesses should review the final guidance to understand exactly what will be required.
The Mandate specifically applies to all individuals age two and older, regardless of vaccination status. The announcement did not specifically address whether the Mandate applies to contractors or visitors who are not patrons or employees. Presumably, this issue will be clarified in the final order and any forthcoming guidance.
Businesses that currently enforce a vaccination requirement for entry will be exempt from the new Mandate, if such requirement (1) applies to both employees and patrons, and (2) requires all persons entering the premises to be fully vaccinated with any vaccine authorized by the US Food and Drug Administration (FDA) or the World Health Organization (WHO).
The Mandate’s definition of “fully vaccinated” does not currently include a booster shot, but it does require persons to have received the last dose in their initial vaccine series (i.e., two weeks have passed since the second dose of a two-dose series such as the Pfizer or Moderna vaccine, or the first dose of a single-dose vaccine, such as the J&J Janssen vaccine). Under the Mandate, businesses and venues that require vaccination for entering can accept proof of vaccination provided via Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC vaccination card.
The governor’s press release and press conference leave significant, unanswered questions applicable to many businesses, including the following:
Although the final order will likely address some of these questions, unless there is clarity on potential exemptions, the Mandate appears to state that if any unvaccinated employee or visitor is onsite, everyone on the premises must wear a mask at all times.
Local health departments are being asked to enforce these rules. Violations will include both civil and criminal penalties, including fines of up to $1,000 per violation.
While awaiting the final order, employers should consider, as a best practice:
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