The Never Ending Story – More COVID-19 Guidance for New York: Adoption of an Emergency Regulation for Face Coverings and Proposed Rollbacks of Industry-Specific Guidance

Seyfarth Synopsis: With no fanfare or effective means of publication, New York adopted an emergency regulation, effective May 26, 2021, implementing the latest CDC guidance on face coverings, with certain key exceptions. Notably, face coverings are required for unvaccinated food service workers at all times, regardless of proximity from others. While employers have been expecting revised industry-specific guidance to incorporate the new social distancing and mask mandates, instead, on June 7, 2021, Governor Cuomo announced that upon reaching a 70% vaccination rate for adults state-wide, most restrictions currently in place will be lifted.

New York State recently published emergency regulations (66-3.1—66-3.5) regarding mandatory face coverings in the wake of COVID-19 and the State’s adoption of the CDC’s recent guidance, which we previously discussed here, allowing fully vaccinated individuals to go without a face covering under most circumstances. They also address non-essential gatherings and penalties.

The emergency regulations provide, in sum:

• Individuals over age two and who are medically able must wear a face covering in a public place when not maintaining a social distance, unless the individual is fully vaccinated (i.e., 2+ weeks after the final dose of any COVID-19 vaccine), in which case a face covering is not required. Exceptions to this rule include: a pre-kindergarten to twelfth grade school, public transit, homeless shelter, correctional facility, nursing home, health care setting, or other setting where mask use is otherwise required by federal or state law or regulation.
• Employees in any workplace who are not fully vaccinated must wear a face covering when “in direct contact with customers or members of the public, or when unable to maintain social distance.” Notably, employees of food service establishments who are not fully vaccinated must wear a face covering at all times while at the workplace. Businesses must provide such face coverings at no cost to employees.
• Businesses and building owners may require all individuals who enter their premises to wear a face covering, and are entitled to deny admittance to any person who does not comply. Note, this particular provision is subject to conformance with the Americans with Disabilities Act, New York State, and New York City Human Rights Laws.
• Businesses cannot deny services or discriminate against any individual on the basis that they choose to wear a mask for purposes of protection against COVID-19, but which is not designed to otherwise obscure the identity of the individual.
• Non-essential gatherings are prohibited under certain circumstances, i.e., over capacity limitations provided by relevant Executive Orders or on sidewalks, streets or other public property within 100 feet of a food service establishment or a business holding a liquor license. Any non-essential gatherings must comply with social distancing protocols and cleaning and disinfection guidelines. This prohibition does not apply to essential businesses as defined by Empire State Development.
• Fines for violation of the emergency regulations are $1,000 per violation, except for violating capacity limits on non-essential gatherings or for a business or individual who promotes a non-essential gathering, which has a maximum fine of $15,000.

While it was expected that New York’s industry-specific guidance would be updated to address the new mask and social distancing rules, it now appears that is unlikely.  Instead, during a press conference on June 7, 2021, Governor Cuomo announced that “most remaining COVID restrictions will be lifted when 70% of adult New Yorkers have received at least one dose of the COVID vaccine.” At the time of the announcement, the percentage was at 68.6%. 

The announcement included the following:

• “The State's New York Forward industry specific guidelines -- including capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing -- will become optional for retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services, among other commercial settings. Large-scale event venues, pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings must continue to follow the State's guidelines until more New Yorkers are vaccinated.”
• Unvaccinated individuals will still be responsible for maintaining proper social distancing of six feet and wearing a mask.  In addition, large-scale event venues, Pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and health care settings will be exempt from the restriction lift, and New York State’s existing COVID-19 health protocols will remain in effect. (Notably, the requirement that unvaccinated food service workers continue to mask at all times was not mentioned as a restriction that will remain in place, but this may have been an oversight).

It is also unclear whether the emergency regulations cited above are intended to work in tandem with the lifting of the industry-specific guidance upon reaching the 70% threshold, or will once again be amended in accordance with same.  This likely depends on whether the rollback of the industry-specific guidance is effectuated through a broader lifting of the COVID-19 disaster emergency declaration. 

Seyfarth will continue to track what has become a rather confusing lifting of restrictions across New York.  Please contact your Seyfarth attorney with any questions you may have.