On December 10, 2021, New York Governor Kathy Hochul announced that face masks must be worn in all indoor public places in New York State, effective December 13, 2021.  This measure was taken in response to a notable surge in COVID-19 cases and hospitalizations statewide, attributable to colder weather, increased holiday activity and the emergence of the more contagious Omicron variant of the COVID-19 virus.  The measure, which is supported by a determination from the commissioner of health, is effective through January 15, 2022, when it will be reevaluated based on conditions at that time.

Businesses and venues must require masks not only for staff but also for patrons age two and older.  Businesses that have implemented a proof of vaccination requirement as a condition of entry, however, do not need to impose an indoor masking rule.

We’ve reviewed some of the most common questions below.

Who is covered by this requirement?  Is our workplace an “indoor public place”?

The new requirement applies to all “indoor public places,” except where businesses or venues have implemented a proof-of-vaccination requirement. The health commissioner’s determination defines “indoor public place” as “any indoor space that is not a private residence.”

This phrase generates significant debate, as it has often been used, but rarely defined, in COVID-19-related safety guidance.  In general, both the Centers for Disease Control (CDC) and World Health Organization (WHO) have distinguished public settings from private household settings.  The Occupational Safety and Health Administration has stated its support for:

generally applicable requirements meant to protect public health by helping to prevent the spread of COVID-19 in public spaces.  This includes requirements mandating that everyone wear face coverings in indoor spaces, such as businesses, government buildings, and schools, or that members of the public provide proof of vaccination or recent COVID-19 testing to enter restaurants, bars, or other public spaces.¹

In New York State, however, employers are already subject to the NY HERO Act, under which masks are already required in all indoor workplaces except where “all individuals on premises, including but not limited to employees, are fully vaccinated.”  Thus, the HERO Act does not distinguish between workplaces based upon whether they are open to members of the public, but rather focuses on whether all persons present are known to be vaccinated against COVID-19. 

COVID-19 is designated as a highly contagious communicable disease under the HERO Act; although that designation currently runs through December 15, 2021, it is likely to be extended by the state given current COVID-19 transmission statistics.  Effectively, the combination of the HERO Act and the new mandate creates an indoor masking rule for all persons present in New York workplaces.

How does the vaccination exception work?

Businesses that impose a “proof-of-vaccination requirement,” meaning that they verify that all those entering the workplace have been fully vaccinated against COVID-19, do not need to require masks.  Any of the following may be used as proof of vaccination:

• The Excelsior Pass or Excelsior Pass Plus
• SMART Health Cards issued outside New York State
• A CDC vaccination card

Full vaccination is defined as having received two doses of either the Pfizer/BioNTech or Moderna COVID-19 vaccines, or one dose of the Janssen/Johnson & Johnson vaccine, with at least 14 days having passed since the final dose.  While the state recommends that eligible individuals obtain booster doses in light of current circumstances, boosters are not required to qualify as “fully vaccinated” at this time.

Do employers need to pay for or supply individuals with appropriate masks?

Under previous similar orders, New York has specifically required employers to provide employees in essential, customer-facing roles with face coverings at the employer’s expense.  In addition, the employer may have that obligation under general state or local laws obligating employers to provide or pay for equipment like face coverings, or where an employee who is unable to receive the COVID-19 vaccination for legally protected reasons has been granted an accommodation to enable them to work in person. 

Governor Hochul’s announcement does not address whether businesses must also supply patrons with masks, but does require them to “ensure that patrons age 2 and older wear a mask at all times while indoors.”

Are there penalties for non-compliance?

Yes.  Local health departments are tasked with enforcing this requirement, and violations of this requirement are subject to civil and criminal penalties, including a fine of up to $1,000 per violation.

How does this mandate interact with other COVID-19-related requirements?

Many New York City employers are already familiar with the Key to NYC Pass, which requires proof of vaccination for covered dining, entertainment and other public accommodations, as well as this week’s newly announced vaccination mandate for private employers.  Governor Hochul has expressed support for these and other municipal COVID-19 safety measures.  Compliance with the Key to NYC Pass should satisfy the “proof of vaccination” exception.  New York City employers that are not subject to the Key to NYC Pass will either need to determine how to extend a vaccination policy to non-employees who may be present on site or continue to enforce existing HERO Act requirements for masking.