New York Businesses Must Implement Mask Requirement or Require Proof of VaccinationDecember 13, 2021
Beginning today, December 13, 2021, masks must be worn in all indoor public spaces in New York State, unless the indoor public space requires proof of full vaccination as a condition of entry (“NYS Mask Mandate”). Governor Hochul announced this new requirement in an effort to address the anticipated COVID-19 winter surge and spread of the new Omicron variant. This NYS Mask Mandate applies to any indoor space that is not a private residence, including offices. For employers, this means that if your employees are on site, you must either (i) require all workers and visitors who enter the indoor premises to wear masks (regardless of vaccination status), or (ii) require proof of full vaccination from all individuals.
Unlike the federal Emergency Temporary Standard (“ETS”) published by the Occupational Safety and Health Administration (“OSHA”) which applies to employers with 100 or more workers, the NYS Mask Mandate applies to private sector companies regardless of the number of employees. In light of several challenges to OSHA’s authority to implement the ETS, OSHA has suspended its implementation and enforcement of the ETS pending future litigation developments.
The NYS Mask Mandate specifically notes that businesses must continue to follow local requirements regarding proof of masking or vaccination. As of December 27, 2021, New York City will require private sector employees to be vaccinated. Thus, the option in the NYS Mask Mandate allowing non-vaccinated workers would be superseded, in part, by the NYC vaccination mandate.
New Vaccination/Masking Requirements for NYS Businesses
Applies to all Indoor Public Places - NYS has defined “indoor public place” as any indoor space that is not a private residence. This includes indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, offices, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings.
Parameters for Proof of Vaccination Requirement - Pursuant to Governor Hochul’s announcement, businesses that implement a vaccination requirement must ensure that anyone 12 years or older is fully vaccinated before entering indoors.
- The definition of “fully vaccinated” remains the same as the CDC definition: 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine). WHO-approved vaccines are also accepted.
- Because vaccines for children aged 5-11 have only become recently available, children aged 5-11 need only show proof of having had at least one dose of a COVID-19 vaccination.
- Businesses can accept proof via CDC vaccination cards, the Excelsior Pass/Excelsior Pass Plus, NYC COVID Safe app, SMART Health Cards issued outside of New York State, or other official immunization record.
Mask Requirement - If NYS businesses do not implement a vaccine requirement, they must ensure that everyone 2 years or older (and medically able to tolerate a face covering) wear a mask at all times while indoors, except when actively eating or drinking. This includes vaccinated individuals. In other words, if a business chooses not to implement a vaccine requirement, everyone must wear a mask. The State highly recommends the use of social distancing measures when individuals are actively eating or drinking, and thus unmasked. Note that for offices, in addition to eating and drinking, individuals are not required to wear masks when alone in an enclosed room.
Ensuring Compliance - Many businesses within New York State, especially New York City, already have some vaccination and/or mask requirements. But policies will likely need to be revised in light of the State’s and NYC’s new requirements.
- Businesses cannot do a “combination requirement.” It is not permissible to permit fully vaccinated individuals to be unmasked, but require unvaccinated/partially vaccinated individuals to wear masks. In other words, if a business does not require proof of vaccination from all individuals, everyone must be masked. If a business elects to have a proof of vaccination requirement, it must apply to all entering the business – staff, patrons, visitors and guests.
- NYC businesses that comply with the Key to NYC vaccine requirement should note that this new requirement requires proof of full vaccination, rather than just one dose, as is presently required by the Key to NYC requirements. The State’s guidance notes that until December 27, when the Key to NYC program will require full vaccination (as noted below), businesses subject to both requirements may either (i) continue to permit partially vaccinated individuals, under the condition that all individuals, regardless of vaccination status, wear masks at all times, except while actively eating or drinking, or (ii) beginning December 13, require all individuals to be fully vaccinated.
- Many businesses presently do not have mandatory vaccination policies, and have a mix of vaccinated and unvaccinated employees. These businesses must either implement a mandatory vaccination requirement so that employees may work without masks, or require that all individuals wear masks, regardless of vaccination status. As noted below, NYC businesses will shortly need to implement a mandatory vaccination policy for their employees.
- Businesses that already require their employees to be vaccinated must also require that all third parties entering their indoor space show proof of full vaccination, or require all individuals (employees and third parties) to wear masks, regardless of vaccination status.
Governor Hochul advised that this measure is effective through January 15, 2022, after which NYS will re-evaluate the requirement, based on then-current conditions. Businesses will be subject to fines of up to $1,000 for each violation.
The NYS Mask Mandate does not appear to alter NY HERO Act requirements for employers.
Governor Hochul’s announcement is available here: Governor Hochul Announces Major Action to Address Winter Surge and Prevent Business Disruption as COVID-19 Cases and Hospitalizations Rise Statewide (ny.gov).
FAQ published by the NYS Department of Health are available here: Frequently Asked Questions: Proof of Full Vaccination or Mask Requirement for Businesses and Venues | Department of Health (ny.gov).
NYC Vaccine Mandate and Key to NYC Update
On December 6, 2021, Mayor Bill de Blasio announced that beginning December 27, 2021, New York City will have a vaccine mandate for private-sector workers. The City is expected to issue enforcement and reasonable accommodation guidance on December 15, 2021.
Further, Mayor de Blasio announced that the Key to NYC requirements, which require that individuals show proof of vaccination for indoor dining, fitness and entertainment, will expand this month. Currently, individuals 12 and older must show proof of having received at least one dose of a COVID-19 vaccine.
- Beginning December 14, 2021, individuals aged 5-11 must also show proof of having received at least one dose of a COVID-19 vaccine.
- And beginning December 27, 2021, individuals 12 and older must show proof that they have received two vaccine doses (except those who received the one-shot Janssen/Johnson & Johnson vaccine).
Mayor de Blasio’s announcement is available here: Mayor de Blasio Announces Vaccine Mandate for Private Sector Workers, and Major Expansions to Nation | City of New York (nyc.gov).
Further Key to NYC information is available here: COVID-19: Vaccine Key to NYC - NYC Health.
OSHA ETS (Employer Vaccination Policy) Update
On November 5, 2021, OSHA published an ETS requiring that employers with 100 or more employees implement (i) a mandatory COVID-19 vaccination policy or (ii) policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
However, pursuant to a Court order staying implementation of the ETS nationally, OSHA has suspended its implementation and enforcement of the COVID-19 Vaccination and Testing ETS. The U.S. Court of Appeals for the Sixth Circuit is expected to rule on OSHA’s motion to lift this stay. Thus, the current deadlines set by OSHA are not in effect, but if the stay is lifted or the scope of the stay is narrowed, some or all employers may be required to quickly comply with the ETS requirements. As a result, it is recommended that employers gather vaccination status information from employees and consider how they would implement the ETS requirements.
In the event the ETS is implemented, it preempts only those state or local laws that ban or limit employers from requiring a vaccine, testing or a face covering. As written, it would not, for example, supersede the NYS or NYC mandates described above.
Information regarding the OSHA ETS requirements is available here: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov).
Please contact a member of Herrick’s Employment Group with any questions.
Carol M. Goodman at +1 212 592 1465 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.