New York Businesses Must Implement a Mask Mandate Unless the Business Implements a Vaccination Mandate

On December 10, 2021, New York Governor Kathy Hochul announced that all businesses in New York state must require all employees and patrons to wear masks in all indoor public places unless the business implements a full-course vaccine requirement for all employees and patrons. The New York State Department of Health issued FAQs on the same day.

Governor Huchul's order shall initially be in effect from December 13, 2021, through and including January 15, 2022, at which point the state will reevaluate this mandate.

General Information

Any business in New York state that does not have a mandatory vaccination policy for employees, patrons, guests, etc., must require that any person, past their second birthday and medically able to tolerate a face covering, wear an appropriate mask while in any indoor public place, regardless of vaccination status, unless they are physically eating or drinking. According to the Department of Health, an "indoor public place" is defined quite broadly to mean "any indoor space that is not a private residence." Thus, this definition encompasses office-based work, as well as restaurants, office buildings, shopping centers, grocery stores, pharmacies, and houses of worship.

Businesses that implement a vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering; and that children ages 5 to 11 have had at least one dose of the COVID-19 vaccination. In accordance with the CDC's definition of fully vaccinated, full-course vaccination is defined as 14 days past an individual's last vaccination dose in their initial vaccine series, meaning 14 days past the second shot of the two-dose Pfizer-BioNTech or Moderna COVID-19 vaccine or 14 days past the one-shot Janssen/Johnson & Johnson COVID-19 vaccine.Significantly, a business cannot "mix and match" or do a "combination." For example, a business cannot allow vaccinated patrons to be unmasked, but require that individuals who are not fully vaccinated wear masks in the same indoor facility. As set forth in the FAQs, "a business . . . must choose whether it will implement a full-course vaccine requirement or a mask requirement, which applies to both patrons and employees and then must be followed in its entirety throughout the facility at all times each day."

Continued Masking Requirements

Unvaccinated individuals should continue to wear 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 health care settings per CDC guidelines.

Application to HERO Act

The mask mandate does not affect the New York HERO Act, which all employers in New York state remain obligated to comply with. Our most recent advisory regarding the HERO Act can be found here.

Industry-Specific Information

Office-Based Work

The mask mandate applies to office spaces. Thus, if the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status, except when eating, drinking, or alone in an enclosed room.

Food Services Businesses (e.g., Restaurants or Bars)

As set forth in the FAQs:

• If a business does not require proof of vaccination, all employees and patrons must wear a mask in indoor spaces and any outdoor enclosed or semi-enclosed spaces at all times regardless of vaccination status, except when necessary to eat or drink.
• Food services businesses that operate outdoor spaces that are enclosed or semi-enclosed with more than two sides must implement the same requirement across both their indoor and any outdoor enclosed or semi-enclosed spaces.
• Outdoor dining spaces that have a temporary or fixed cover (e.g., awning or roof) and at least two open sides for airflow do not need to follow the same requirements as the indoor space of the restaurant. Mask wearing for patrons in such spaces, except while patrons are actively eating or drinking, is strongly recommended, but not required.
• Food services businesses that have open, unenclosed spaces (e.g., no roof, two or fewer sides covered) do not need to follow the same requirements as the indoor public spaces. Rather, mask wearing for patrons in such spaces, except while patrons are actively eating or drinking, is strongly recommended, but not required.

Private Events at Public Restaurants or Venues

Private events held at public indoor spaces, such as weddings hosted at a restaurant or venue, are included in the order. The business or venue must require proof of vaccination as a condition of entry or the business or venue must implement a mandatory masking requirement.

Salons and Other Personal Care Business

Salons and other personal care businesses that provide services which require customers to remove their face mask (e.g., facials, beard trimming, waxing of the upper lip) are strongly encouraged to implement a proof of vaccination requirement. However, businesses that do not implement such a requirement may allow customers to briefly remove their face mask while receiving such services, under the condition that guests wear a face mask before and after receiving such services and at all other times while inside the facility. The employee performing these services must wear a face mask at all times if the business does not implement a proof of vaccination requirement.

TV and Film Productions

Effective December 13, 2021, to December 26, 2021, TV and film productions that do not implement a vaccination requirement for all individuals must ensure individuals wear face masks at all times except when actively eating or drinking, or alone in an enclosed room. However, individuals appearing on camera (e.g., anchors, actors, guests) may remove face coverings while filming is taking place, under the condition that they maintain a distance of at least six feet from all other individuals not appearing on camera (e.g., crew members, production staff).

Fines and Enforcement

A violation of any provision of this measure is subject to a maximum fine of $1,000 for each violation. Local health departments are being asked to enforce these requirements, but aside from the imposition of fines, no other penalties (such as temporarily shutting down a business) are being permitted. This measure is effective December 13, 2021, to January 15, 2022, at which time the state will reassess the measure.

Next Steps

Beginning December 13, 2021, employers must require all employees and patrons to wear a mask in any indoor public place, unless the employer has a vaccine requirement in which all employees and patrons must present proof that they are fully vaccinated to enter any indoor public place.

Employers should inform employees and patrons of their policy and rigorously enforce it due to the substantial fines (and adverse publicity) associated with non-compliance. The state has created and published posters that can be displayed depending on which option an employer chooses to implement: proof of full-course vaccination or a mask requirement.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.