On Friday, December 10, 2021, Governor Kathy Hochul announced masks are required to be worn in all indoor public places unless businesses/venues implement a vaccine requirement. This is a major action intended to address the winter surge as COVID-19 cases and hospitalizations rise statewide and to align with the CDC’s recommendations for communities with substantial and high transmission.
Effective today (December 13), masks must be worn in all indoor public places unless the business/venue implements a vaccine requirement. The requirements went into effect at 12:01 a.m. today, and will continue through January 15, 2022, at which time the state will re-evaluate next steps based on the average number of COVID-19 cases.
The New York Department of Health (DOH) issued a Determination on Indoor Masking, in addition to, guidance in the form of frequently asked questions (FAQs) to assist businesses/venues with compliance. Below are key highlights from the guidance.
- Public Places. The guidance defines public places very broadly. An indoor public place is essentially any indoor space that is not a private residence. The guidance also states that the mandate applies to both public and private entities.
- Mask Requirements. Any person over age two (2), who is medically able to tolerate a face covering, must wear an appropriate mask while in any indoor place, regardless of vaccination status unless the business/venue chooses to implement a vaccination requirement by requiring proof of vaccination as a condition of entry inside the business/venue. In addition, if eating or drinking is part of the business, patrons can remove their masks only while they are actively eating or drinking.
- Acceptable Proof of Vaccination. Businesses and venues that implement a proof of vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses/Venues can accept 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.
- Non-Compliance. Employers who do not comply may face fines. Local health departments will be responsible for enforcement, and the maximum civil penalty is a $1,000 fine.
Employers must also continue to comply with the NYS Health and Essential Rights Act (NY HERO Act), which affords protections for private sector employees against an airborne infectious disease outbreak by requiring employers to ensure employees wear appropriate face coverings in accordance with DOH guidance. For purposes of complying with the NY HERO Act, the Commissioner’s Determination constitutes DOH guidance related to face coverings, meaning, employers must ensure their employees adhere to masking requirements or require proof of vaccination as a condition of entry into the business/venue.
Due to these circumstances, employers should also expect that the NY HERO Act’s active designation status will extend beyond December 15, 2021.
Next Steps for Employers
Businesses have two choices; (1) implement a full-course vaccine requirement or (2) implement a mask requirement, which applies to both patrons and employees and then must consistently follow it throughout the premises at all times each day. This means that there cannot be a hybrid approach to compliance; it must be one or the other. Once a business/venue has determined which approach they will take, it should be clearly communicated to all employees and patrons.
For those businesses/venues choosing to require masks, consider using signage to alert employees, patrons and visitors to the facility’s mask requirement prior to entering the premises. The CDC has downloadable signage that businesses/venues may use for this purpose which may be accessed here.
Employers covered by the NY HERO Act should review their plans and determine if updates are needed on mask requirements to align with the DOH’s determination. If revisions are needed, ensure that the revisions are documented accordingly and ensure that the revised plan is verbally reviewed with employees and that they are provided a copy of the revised plan. In addition, ensure that the updated plan is posted in a prominent location that is easily accessible, and if applicable, it is included in the business’ employee handbook.
Employers are encouraged to thoroughly review the DOH guidance, as it also contains industry specific guidance for businesses/venues such as restaurants, bars, salons and personal care services.
Because the mandate applies to virtually all businesses/venues, it is also recommended that employers who have specific situations or uncertainty as to whether the mandate applies to their workplace consult with their legal counsel.
HR Works Can Help
Contact HR Works for additional COVID-19 resources for your workplace, as well as assistance with workplace safety and health policies, including mask notification letters to employees, vaccination policy templates, NY HERO Act compliance assistance or any other human resource needs.