On Friday, December 10, 2021, the New York State Department of Health Commissioner issued the “Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60” (the “Determination”) setting forth new indoor masking guidelines in the State of New York. The Determination provides “findings of necessity” in support of that mandate, including among other things statements that  the “winter surge of the Delta variant” and the concern that the Omicron variant “appears to be spreading” support issuing strict indoor masking measures during the holiday season to “ensure that there is protection in all indoor settings through either vaccination status or mask-wearing.” (The 12/10/21 Determination at “Findings of necessity.”) Governor Hochul announced the indoor masking mandate would become effective Monday, December 13, 2021, remaining in effect until January 15, 2022.This post focuses on the guidelines set forth concerning  “All Public Places Not Otherwise Covered by This Determination.” (The 12/10/21 Determination.) However, a summary of the key provisions of the other indoor mask requirement is set forth in the footnote below.[1]

The Mandate to All Public Places Not Otherwise Covered by This Determination.

The Determination establishes strict indoor masking guidelines for the State of New York, regardless of vaccine status, providing in relevant part that “…all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering while in any indoor public place.”  (The 12/10/21 Determination at 7.a.) The Determination further provides that “indoor public place” shall mean “any indoor space that is not a private residence.” (The 12/10/21 Determination at 7.c.) The exception to this rule is “any indoor public area that requires proof of vaccination as a condition of entry.” (The 12/10/21 Determination at 7.b (underline emphasis added).) In other words, the Determination provides that all persons ages 5 and above provide proof of vaccination prior to entering an indoor business or venue or all persons in that business or venue must be masked at all times (less specifically enumerated instances) regardless of vaccination status.

What Is an Indoor Public Place and What is Required in the Public Business/Venue?

The Determination’s corresponding Frequently Asked Questions (“FAQs”) addendum explains the intended scope of the “indoor public place” requirements. Specifically, the definition is intended to include “typically frequently” public and private venues such as “indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings.” (See Frequently Asked Questions at “Information for Businesses and Venues.”)

The FAQs further explain that an indoor business or venue may choose to comply with the mandates set forth in the Determination by either requiring that all persons who enter the indoor venue are fully vaccinated or by requiring that all persons inside such a venue are fully masked, regardless of vaccination status; however, “[a] business and venue cannot do a ‘combination’ requirement.” (See Frequently Asked Questions at “What Exactly are the Requirements?”)  Further, the requirement applies to patrons and employees. In other words, if a business or venue does not require that all patrons show proof of vaccine status before entering, every employee in the business or venue must adhere to the mask mandate at all times while indoors and vice versa.

What Proof is Required by the Determination?

The FAQs explain that persons age twelve (12) and above must be fully vaccinated (defined as 14 days post a one-dose vaccine or 14 days past the second dose of a two-dose Pfizer or Moderna COVID-19 vaccine) prior to entering a business or venue. Children ages 5-11 must show proof of at least one dose of the COVID-19 vaccine prior to entering a business or venue. (See Frequently Asked Questions at “Business/Venue Proof of Vaccination Requirement.”)

Such proof may be established by the Excelsior Pass, SMART Health Cards issued by states other than New York, a New York State COVID Safe app full-course vaccination, a CDC Vaccination Card, or other official immunization record will satisfy the Requirement. (See Frequently Asked Questions at “Business/Venue Proof of Vaccine Requirement.”)

How Do the Mandates Affect Office Spaces?

The FAQs explain that any office space that does not require proof of vaccination as a condition of entry must follow the masking policy, stating: “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.” (See Frequently Asked Questions at “Information for Businesses and Venues” (underline emphasis added).)  The FAQs add that such guidance constitutes “Department of Health guidance related to face coverings” as set forth in the NY HERO ACT. (See Frequently Asked Questions at “Information for Businesses and Venues.”)

How Do the Mandates Affect Private Gatherings Such as Weddings and Restaurants?

According to the FAQs, private events held indoors at a business or venue are included in the new mandate. In other words, “the business entity/venue must require masking or proof of vaccination as a condition of entry” to a wedding or similar private event held at a private business or venue. (See Frequently Asked Questions at “What about private events held at a public indoor space, such as a wedding hosted at a restaurant or venue?”)

Additionally, food services businesses operating with both indoor and outdoor, enclosed, or semi-enclosed spaces with more than two sides covered must comply with these mandates in both the indoor and outdoor spaces. However, food services operating exclusively in open, unenclosed spaces, e.g., without a roof or two or fewer sides covered, are strongly recommended but not required to follow the mask mandate. (See Frequently Asked Questions at id.)

What About Salons/Personal Care Service Business?

The FAQs state that the proof of vaccine mandate applies to personal care service settings. If a salon does not require proof of vaccine to enter, then persons receiving facials, face hair trimming, etc. “may briefly remove their masks while receiving such services” but are otherwise required to wear masks at all times. The brief removal exemptions would not apply to any services such as hair cuts that do not require mask removal. (See Frequently Asked Questions at “How does the new policy work for salons and other personal care businesses…?”) For a full review of the scenarios contemplated, see generally Frequently Asked Questions.

Preparing for the New Mandate

In light of the new mandate people living in and visiting New York should consider taking the following steps:

• Fully vaccinated persons and employees alike in New York should bring a mask and proof of vaccine when leaving their residence to go to indoor businesses or venues to ensure entry into such establishments.
• Owners/Managers of indoor businesses or ventures must immediately determine how they will comply with the mandate while it is in effect.
• Persons hosting weddings and gatherings at indoor businesses or ventures while the mandate is in effect should reach out immediately to the owners/managers of those establishments to determine the policies adopted and the effect, if any, such policies will have on guests’ ability to attend the event.
• Unvaccinated persons in New York age five and over will likely experience difficulties frequenting restaurants and service salons and/or attending school functions and meetings while this mandate is in effect.
• Families with unvaccinated children ages five and above planning on visiting New York should consider the effect the mandate will have on their travel plans.

s[1] Healthcare Settings: “…all personnel, regardless of vaccination status … shall wear an appropriate face mask” and “all visitors over age two and able to medically tolerate a face covering/mask shall be required to wear a face covering/mask in health care facilities, regardless of vaccination status, subject to applicable CDC exceptions….” (The 12/10/21 Determination at 1.)

Adult care facilities (ACFs) regulated by the Department: “all ACF personnel, regardless of vaccination status, shall wear an appropriate face mask if providing direct medical care” and other staff shall wear “at a minimum, a cloth face covering … in such settings” both “in accordance with any applicable CDC exceptions….” (The 12/10/21 Determination at 2.)

P-12 school settings: “[U]niversal masking of teachers, staff, students, and visitors to P-12 schools over age two and able to medically tolerate a face covering/mask and regardless of vaccinations status … subject to applicable CDC-recommended exceptions.” (The 12/10/21 Determination at 3.a.) This requirement “is extended to any gathering on school grounds which addresses or implements educational matters where students are or may reasonably be expected to be present.” (The 12/10/21 Determination at 3.b.) If “officials presiding over” such public meetings “are unable to guarantee compliance with such masking requirements, they are advised to implement full virtual access to public meetings” as set forth in the New York State Open Meetings Law dated September 2021. (The 12/10/21 Determination at 3.b.) Finally, the P-12 school setting mask mandate “does not provide for the implementation of ‘mask breaks’ during the school day, nor does it provide for an exception to the masking requirement on the basis of minimal social distancing in classrooms.” (The 12/10/21 Determination at 3.c.)

Correctional facilities and detention centers: “[A]ll incarcerated/detained Persons and staff shall wear an appropriate face covering/mask when social distancing cannot be maintained” and all “visitors over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask in accordance with applicable CDC exceptions….” (The 12/10/21 Determination at 4.a.-b.)

Homeless Shelters/Emergency Shelters/Day Shelters and Meal Service Providers: “[A]ll clients visitors, staff, and volunteers over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask, regardless of vaccination status, when social distancing cannot be maintained….” (The 12/10/21 Determination at 5.)

Public Transportation Conveyances and at Transportation Hubs: While indoors on public transportation and at hubs, “all persons , over age two and able to medically tolerate a face covering/mask, regardless of vaccination status shall wear an appropriate face covering mask….” (The 12/10/21 Determination at 6.a.)