Tri-State Alert - Capacities Up, Masks Down, and Lots of Details to Be Worked Out in NY, NJ & CT

Seyfarth Synopsis: New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, and Connecticut Governor Ned Lamont have been actively reviewing and easing their state’s respective COVID-19 pandemic restrictions.  Notably, beginning on May 19, 2021, the tri-state is lifting most industry capacity restrictions, and replacing them by restricting businesses only based upon the amount of space necessary to maintain six feet of social distancing between unrelated parties.  Occurring nearly simultaneously, the CDC has announced a lowering of masking requirements for fully vaccinated persons, subject to state, local, or business restrictions.  This masking guidance also has been approved by the Occupational Safety and Health Administration (“OSHA”) and each state has taken a position on masking requirements, although each state differs in its approach.  As might be expected, while the tri-state area is generally enacting a more pared down list of COVID-19 restrictions, it seems likely there will be some level of clarification needed to make the reduced restrictions and updated masking regulations less confusing and subject to good faith implementation by employers and places of business.  In addition, each state will continue to have at least some industry-specific guidance or other general regulations that may add additional restrictions.  A brief, generalized summary of the current situation is that COVID-19 restrictions appear to be easing, but there will be some confusion until the details are fully hashed out.

NEW YORK

Governor Cuomo’s “rollback” announcement included a number of seemingly positive moves for the state, namely with respect to social distancing and capacity limits.  New York’s developments can be found at this link - NY Reopening Reference Guide.  Specifically:

• On May 10th, the outdoor social gathering limit increased to 500 people, and on May 19th the indoor social gathering limit will increase to 250 people. In New York, any event gatherings in excess of the social gathering limits may only occur if all individuals present proof of full vaccination status or recent negative COVID-19 test result.
• On May 19th, business capacity limits based on a percentage of capacity will be replaced with capacity limits based on the space available to maintain six feet of social distancing. The announcement provides that the new distance-based maximum capacity “will apply across commercial settings, including retail, food services, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among other settings, [and] houses of worship.”  However, industry specific guidance remains in effect.  While the state has said industry guidance will be updated, no major revisions have been published to date.
• On May 19th, capacity at large outdoor venues, like those that host outdoor sports competitions or performing arts events, will only be limited by the space available for parties to maintain a social distance of six feet, provided social distancing requirements, masking protocols, and other public health restrictions are followed. Fully vaccinated individuals who are in assigned, seated sections designated solely for such persons will not need to social distance.
• On September 14th, Broadway theaters will be permitted to reopen at 100% capacity.

Notably, even with the rollback of restrictions, New York appears to be maintaining specific industry guidance for addressing COVID-19 compliance, although it is expected that the State will be revising it based on the significant number of recent changes. 

No doubt, the recent announcements appear to be welcome developments, but it remains to be seen what New York is actually permitting when it comes to capacity restrictions.  It appears that New York is shifting from a percentage or numerical-based limitation to a new capacity limitation that is based almost entirely on the more nebulous notion of providing six feet of space for everyone (or at least for everyone that is not vaccinated).  If taken literally, the six foot rule would mean that each occupant would need their own floating 12 foot by 12 foot zone in which to operate.  Certainly, such a standard would not provide New York businesses with relief, and it would compare negatively with existing New York code that provides for different capacities and loads based upon business and industry designations (see NY Building Codes).  It would appear that New York is not intending to create stricter capacity requirements, but again the restrictions seem dependent upon vaccination status.  In this regard, New York guidance for businesses presently provides that:

For areas where vaccination status of individuals is unknown and for patrons who do not present proof of full vaccination status, the required social distance of 6 feet still applies until more New Yorkers are fully vaccinated. This change will apply across all commercial settings, except the exempt settings outlined by the CDC.   

This easing of capacity restrictions goes hand in hand with the easing of masking restrictions announced by Governor Cuomo on May 17 - (NY Mask Guidance).  Indeed, Governor Cuomo stated that New York will follow the CDC guidelines (CDC guidance) on masking for vaccinated persons.  What is unclear about those requirements is how businesses will apply them to employees and visitors.  It seems likely that this easing of capacity limits, masking requirements, and getting back to normal business in New York may well be dependent upon considerations relating to vaccinations, negative tests, and/or proof of prior infection.  Also, there is likely to be an interplay with OSHA’s “General Duty Clause,” which requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.  This entire discussion promises to bring some confusion and contention to bear, and at least six New York County Executives are weighing in for the removal of masking rules altogether and return of normalized business capacities. 

Finally, employers in New York are reminded that all of this will need to be blended with an evaluation of the NY Hero Act, see our recent Seyfarth NY Hero Update.

NEW JERSEY

Governor Murphy has issued three new executive orders that will gradually ease the capacity restrictions on indoor and outdoor gatherings (Executive Order 238 and Executive Order 239) and summer youth camps (Executive Order 237).  The indoor and outdoor gathering limitations for New Jersey are summarized at NJ.gov here -  NJ gatherings guidance.  In addition, on May 17, Governor Murphy announced that remote schooling will end after the present school year, all travel advisories have been lifted, and he expects to end the state of emergency by June 14.  As of May 17, masking requirements have also been removed for outdoor public spaces and gatherings of fewer than 50 individuals in indoor private spaces, regardless of individuals’ ability to maintain six feet of distance from other individuals or groups and regardless of their vaccination status; but indoor masking requirements will remain in place for all indoor public locations (businesses, events, etc.) for a short while longer (Executive Order 241). 

With these new Orders, New Jersey will join New York and Connecticut in dropping many of the remaining indoor and outdoor gathering restrictions by May 19, including completely removing the outdoor gathering limit, increasing the indoor gathering limit for general social gatherings, removing all percentage-based capacity limits for indoor and outdoor businesses and houses of worship, and increasing the indoor large venue capacity – though some mask and social distancing regulations will remain.  Featured in New Jersey’s diminished restrictions are six foot distancing aspirations similar to those put forward by New York.  In certain sections of the Executive Orders, New Jersey provides a little more detail about its “six foot rule.”  In this regard, that rule (at least for dining) is said to require that the operator “ensure that tables in indoor areas where individuals or groups are seated are six feet apart in all directions from any other table or seat. . . . Where six feet of distance is not possible, establishments must erect barriers between tables or at the bar,” subject to New Jersey Department of Health (“NJDOH”) Standards.

Outdoor Gatherings:  Executive Order 238 and Executive Order 239

As of May 7, the limit on general outdoor gatherings was increased to 500 people, with a litany of nuances depending on the type of event.  Effective May 19, all of the outdoor gathering numerical capacity limits in New Jersey will be rescinded, and venues must instead limit occupancy to a number that ensures all individuals or groups can remain six feet apart.  Executive Order 239 (as revised by Executive Order 241) further specifies that all attendees at outdoor gatherings that are not religious services or political activities, such as protests, must be six feet apart from other attendees at all times, with some exceptions.  On a somewhat confusing, if not humorous, note, the guidance includes a dance floor reopening limitation for outdoor celebrations and private catered events that requires social distancing, except for groups of people that are from the same household (or the like). 

Executive Order 238 also indicates that requirements from prior orders Executive Order 161 (Paragraph 1) and Executive Order 152 (Paragraph 2) continue to apply, including, among other things, additional social distancing requirements, depending on the size and type of outdoor gathering. 

Indoor Gatherings:  Executive Order 238 and Executive Order 239

Executive Orders 238 and 239 modify the capacity limits for indoor gatherings as follows effective May 19:

• General indoor gatherings → 50 people.
• Indoor gatherings that are political activities, wedding ceremonies, wedding receptions, funerals, memorial services, or Alcoholics Anonymous meetings, Narcotics Anonymous meetings or similar meetings of an additional support group → 250 people, excluding gathering venue staff.
• Indoor gatherings that are religious services or celebrations (including weddings, funerals or memorial services that involve religious services) → No set capacity limit, but must limit capacity to a number that ensures all individuals can remain six feet apart.
• Indoor catered events → 250 people, excluding the venue’s staff, and also with the same dance floor limitation referenced above plus a face covering requirement.
• Indoor commercial and other gatherings hosted in a public space (e.g., trade expositions, conferences and events hosted by senior centers) → 250 people, excluding venue staff.
• Indoor legislative and judicial proceedings → No capacity limits.
• Indoor in-person service at food or beverage establishments → No percentage-based capacity limits, but establishment must limit capacity to a number that ensures all patrons can remain six feet apart from all other patrons at all times, except for those patrons with whom they are sharing a table. Where six feet of distance is not possible, establishments must erect barriers between tables or at the bar pursuant to the NJDOH Health and Safety Standards for Indoor Dining.

Executive Order 238 also lifted the prohibitions on indoor bar seating and self-service food, as of May 7.  Food and beverage establishments may now:

– Seat patrons at indoor bar areas, but the requirements from Executive Order 183 (Paragraph 1) for in-person service at indoor areas in food or beverage establishments continue to apply.  In-person service to patrons standing in bar areas continues to be prohibited.

– Offer self-service food, such as buffets and salad bars, subject to the NJDOH’s Health and Safety Standards for Indoor Dining.

• Indoor premises of retail establishments, personal care services, health clubs, recreational and entertainment businesses (including amusement and water parks), and casinos → No percentage-based capacity limits, but establishment must limit occupancy to a number that ensures all patrons or groups of patrons entering the facility together can remain six feet apart.
• Indoor entertainment centers where performances are viewed or given (including movie theaters, performing arts centers and other concert venues) → 250 people, excluding the entertainment center’s employees. The other requirements outlined in Paragraph 2 of Executive Order 183 continue to apply.
• Indoor athletic practices and competitions → 250 people indoor gathering limit, excluding athletes, coaches, referees, trainers, and other individuals who are necessary for the practice or competition.
• Large indoor sports and entertainment venues (including concert venues and stadiums) with fixed seating capacity of 1,000 or greater → 30% of the stated maximum capacity of any room where such event is held, with mask and social distancing requirements.

Executive Order 239  (as revised by Executive Order 241) further specifies that all indoor public gatherings must adhere to the following rules: (1) all attendees at the gathering must wear face coverings, with some exceptions; and (2) all attendees must be six feet apart from other attendees at all times, with some exceptions. Executive Order 238 also indicates that requirements from prior orders Executive Order 183 (Paragraphs 5 and 6) and Executive Order 152 (Paragraph 1) continue to apply for all indoor gatherings, including, among other things, additional social distancing and face covering requirements, depending on the size and type of indoor gathering. 

In sum, on May 19, what remains for New Jersey businesses are restrictions that are largely geared toward a six foot rule and indoor public space masking requirements.  As with New York, it is expected that New Jersey will be further delineating reopening rules through its own evaluation of vaccine, antibody, and/or testing passports or requirements.

CONNECTICUT

Connecticut has signaled what appears to be the simplest return to normal in the tri-state area and perhaps has demonstrated the greatest degree of common sense in the area.  In this regard, on May 1, 2021, Connecticut removed all outdoor restrictions and moved back the curfew for bars and restaurants.  Further, the state has announced that all other restrictions are being lifted on May 19.  Connecticut’s summary industry guidance can be found here and includes links to all applicable industry sector guidance.  The published regulations at this point continue to include masking and distancing requirements, but Connecticut Governor Lamont has indicated he will conform the state’s requirements so as to follow the CDC’s recent mask guidance for fully vaccinated people.  The Governor went on to clarify that in doing so the state would be relying upon an honor system to confirm vaccinations.  It remains to be seen how this will play out in Connecticut and whether vaccine, antibody, and/or testing passports or requirements will be considered or required. 

Employer Takeaway

Ultimately, COVID-19 restrictions, regulations, and guidelines remain a rapidly evolving area in light of the path toward herd immunity.  To the relief of all businesses, the trend is toward the removal of capacity and other restrictions.  Unfortunately, some of the new and existing regulations are confusing, conflicting, and may appear unnecessary or unenforceable.  For sure, the final chapters have not been written on the exact requirements employers and business owners will face, but we know that whatever results, businesses will be responsible for adhering to them in good faith.  As always, Seyfarth attorneys are available to assist employers and businesses in navigating their specific COVID-19 regulations and requirements.