Citing a “winter surge” in COVID-19 cases and hospitalizations, New York Governor Kathy Hochul announced on Friday, December 10, that a new masking mandate will go into effect on Monday. Read on to understand how your business will be affected by the sudden new requirement, which may scare off both customers and staff alike during the holiday season.
Masking Mandate
Guidance from the Governor Hochul’s website states “masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.” It also says the “new business and venue requirements extend to both patrons and staff. This measure is effective Dec. 13, 2021, until Jan. 15, 2022, after which the State will reevaluate based on current conditions.”
With respect to customers covered by the masking mandate, the guidance notes “businesses and venues that implement a mask requirement must ensure all patrons two years and older wear a mask at all times while indoors.” A violation subjects the business to “all civil and criminal penalties, including a maximum fine of $1,000 for each violation.” Local health departments are being asked to enforce the requirements.
Proof-Of-Vaccination Alternative
With regard to providing adequate proof of vaccination to avoid the masking mandate, the guidance says “businesses and venues who implement a proof of vaccination requirement can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a vaccination card from the U.S. Centers for Disease Control and Prevention (CDC).
In accordance with the CDC’s definition, “fully vaccinated” means the individual is 14 days past the last vaccination dose in an initial vaccine series (i.e., 14 days past either the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine or the one and only shot of the Janssen/Johnson & Johnson vaccine).
The state also accepts World Health Organization-approved vaccines for qualification purposes. Parents and guardians can retrieve and store an Excelsior Pass and/or Excelsior Pass Plus for children or minors under legal guardianship.
Nonbusiness Masking Mandates
Governor Hochul’s mandate appears aimed at private-sector businesses. The guidance also provides, however, that “unvaccinated individuals continue to be responsible for wearing masks, in accordance with federal CDC guidance. Further, the State’s masking requirements continue to be in effect for pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings per CDC guidelines.”
Takeaways
Many employers may have paused mandatory vaccine or vaccine-or-test policies given the recent stays of President Joe Biden’s executive orders. So, except for some New York City dining, gym, and entertainment venues that were already required to ask for proof of vaccination from adult customers, most private-sector businesses may not be ready to implement a proof-of-vaccine verification by Monday. So, be prepared to require masks for all staff and customers aged two years and above until vaccine verification is possible.
While the CDC guidance doesn’t require masking for those employees who are socially distanced or work alone in an office, the new guidance doesn’t currently have that nuanced perspective. Moreover, the timing could not be worse. Governor Hochul’s new vaccine-or-mask mandate comes out on the heels of Mayor Bill De Blasio’s vaccine mandate for New York City businesses issued earlier in the same week.
Finally, a vaccine-or-mask policy may require bargaining for employers with unions. Consult with employment counsel on how to unpackage this newest “gift,” which has been dropped in businesses’ laps during one of the busiest shopping, entertainment, and dining seasons of the year.
Paul J. Sweeney is an attorney with Coughlin & Gerhart, LLP in Binghamton, New York. You can reach him at psweeney@cglawoffices.com.