By Fanny Ferdman and Priya Amin

New York State Indoor Masking or Proof of Vaccination Requirement

Effective yesterday, all New York businesses and venues must require masks to be worn by staff and patrons in indoor public places unless proof of full vaccination is required as a condition of entry. The measure was supported by a determination from the New York commissioner of health, which was issued on Dec. 10, 2021. What this means is that in all indoor places, proof of vaccination is required OR masking is required regardless of vaccination status, and there is no option for a combination approach. This requirement extends to any indoor space that is not a private residence, such as entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers and common areas in residential buildings.

If the proof of vaccination approach is selected, proof of full vaccination for anyone 12 or older is required, and proof of at least one dose is required for children ages 5-11. Children ages 2-5 who are currently ineligible for a vaccine must continue to wear proper-fitting masks. In accordance with Centers for Disease Control and Prevention (CDC) guidelines, “fully vaccinated” is defined as being 14 days past an individual’s second shot of a two-dose vaccine or 14 days past an individual’s first shot of a one-dose vaccine. The state also accepts World Health Organization-approved vaccines for purposes of this mandate. Acceptable proofs of vaccination include the Excelsior Pass, Excelsior Pass Plus and SMART Health Cards issued outside New York state; full-course vaccination through the NYC COVID Safe app; a CDC Vaccination Record card; or other official immunization record.

If proof of vaccination is not a condition of entry, everyone ages 2 and older must wear masks at all times while indoors, regardless of vaccination status, except when eating and drinking or alone in a private room. When masks are removed for these limited purposes, the state highly recommends social distancing, air filtration and ventilation.

This action was taken by the state to address the winter surge of COVID-19 cases and hospitalizations. Employers are instructed to continue complying with the NY HERO Act in conjunction with this new mandate. Local departments of health will be enforcing this new rule, and penalties for noncompliance include up to $1,000 for each violation. The state issued industry-specific guidance to assist businesses and venues in implementing these new guidelines. This is a temporary mandate that will be reevaluated by the state on Jan. 15, 2022.

New York City Vaccine Mandate for Private-Sector Workers

Earlier this month, the mayor announced a new NYC vaccine mandate, which requires vaccinations for all employees who work in person in the city. This new requirement will take effect on Dec. 27, 2021, and will apply to all private employers, irrespective of size or industry. The mandate requires every employee to have at least one dose of a COVID-19 vaccine on or before Dec. 27, 2021, in order to be present in a workplace in the city. Acceptable proof of vaccination will likely include a CDC-issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, full-course vaccination through the NYC COVID Safe app or an NYC vaccination record.

This is the city’s response to the rising number of COVID-19 cases and the omicron variant. Based on the city’s announcement, we do not anticipate a “testing out” option for employees who simply prefer not to be vaccinated. Further, neither the question of whether exemptions will be permitted nor the parameters for reasonable accommodations have yet been specifically addressed. Additional details will be provided through city guidance to be released on Dec. 15, 2021. This new mandate will likely be challenged in court, as other mandates have been, but private NYC employers should update their policies and procedures to ensure they are compliant by the effective date.

Please feel free to contact us should you have any questions.