December 10, 2021 New Mask Mandate for New York State
KEEPING YOU INFORMED…
We are writing to advise you that, consistent with Governor Hochul’s announcement today, the Acting Commissioner of Health issued a new “Determination,” which is effective Monday, December 13, 2021. Among other things, it includes a new mask mandate for all public places and additional rules for P-12 schools.[1]
The Department of Health also issued “Frequently Asked Questions: Proof of Full Vaccination or Mask Requirement for Businesses and Venues” (“the FAQ”) which provides some additional clarification.[2]
The Determination and the FAQ raise many questions about their implementation. We will keep you updated as we learn more. In the meantime, please reach out to us for guidance related to your specific situation.
All Indoor Public Places
Pursuant to the Determination, everyone over the age of two who can medically tolerate a face covering/mask must wear one, regardless of vaccination status, while in any “indoor public place,” unless proof of vaccination against COVID-19 is a condition of entry. An “indoor public place” is broadly defined as “any indoor space that is not a private residence.”[3] This includes indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, and common areas in residential buildings, whether publicly or privately owned. The FAQ further clarifies that this also includes office spaces. If an office does not require proof of vaccination as a condition of entry, everyone must wear masks except when alone in an enclosed room. The FAQ also clarifies that individuals can remove their masks while they are “actively” eating or drinking.
If a business/venue (including any indoor public place, as defined above) chooses to implement the vaccination requirement, it must ensure that anyone over the age of 12 is fully vaccinated before entering and that children ages five through 11 have received at least one dose of the COVID-19 vaccination.[4]
The FAQ states that you can accept as proof of full vaccination one or more of the following: the Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe app, a CDC vaccination card, or other official immunization record.
Violations of this mandate are subject to civil and criminal penalties, including a maximum fine of $1,000 for each violation.
This requirement will remain in place until (at least) January 15, 2022.
P-12 School Settings
A separate provision of the Determination applicable to P-12 schools expands the already existing masking requirements.
All teachers, staff, students and visitors over age two who can medically tolerate a face covering/mask must wear one, regardless of vaccination status. This includes “any gathering on school grounds which addresses or implements educational matters where students are or may reasonably be expected to be present.” The Determination provides that “[i]n the event that officials presiding over public meetings implicated by this directive are unable to guarantee compliance with such masking requirements, they are advised to implement full virtual access to public meetings….”
The Determination also states that it “does not provide for the implementation of ‘mask breaks’ during the school day” and does not “provide for an exception to the masking requirement on the basis of minimal social distancing in classrooms.”
Other Settings
Like the previous determination issued on August 27, 2021, the Determination includes additional requirements applicable to healthcare settings, adult care facilities, correctional facilities and detention centers, homeless shelters and public transportation. If you believe these additional requirements may be applicable to you, we encourage you to call us for guidance on how to interpret and implement them.
If you have any questions regarding this new mandate, please contact Alyssa L. Zuckerman (alz@lambbarnosky.com), Adam S. Ross (asr@lambbarnosky.com) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
[1] The Determination is available at: https://coronavirus.health.ny.gov/system/files/documents/2021/12/2.60-determination-12.10.21.pdf.
[2] The FAQ is available at: https://coronavirus.health.ny.gov/frequently-asked-questions-proof-full-vaccination-or-mask-requirement-businesses-and-venues.
[3] Despite the breadth of this definition, as discussed below, it appears that P-12 schools, healthcare settings, adult care facilities, correction facilities and detention centers and homeless shelters are not subject to these rules and are instead subject to their own unique requirements.
[4] Individuals are usually considered “fully vaccinated” two weeks after a second dose of the Pfizer or Moderna vaccines or two weeks after the Johnson & Johnson vaccine. However, pursuant to the FAQ, children ages five through 11 only have to show proof of having had at least one dose of the COVID-19 vaccination.
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