Unmasking COVID-19 Business Restrictions

Alerts / May 25, 2021

Over the past several weeks, as the number of vaccinated Americans continues to rise, many jurisdictions have eased, or even eliminated, their COVID-19 business restrictions and mask mandates. Most notably, on May 13, 2021, the Centers for Disease Control and Prevention (CDC) issued its “Interim Public Health Recommendation for Fully Vaccinated People”[1] (CDC Recommendation), which was the major catalyst for similar actions by state and local governments.

The CDC Recommendation states that fully vaccinated individuals no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules and regulations. The exceptions identified here include masking and social distancing requirements established by local business and workplaces. Further, the CDC Recommendation updates COVID-19 testing requirements in that most fully vaccinated individuals can now refrain from testing following a known exposure. The return to normalcy established by the CDC Guidance creates a significant incentive for individuals to get fully vaccinated against COVID-19.

Keeping the momentum created by the CDC going, as of May 19, 2021, New York, New Jersey, and Connecticut have lifted most of their COVID-19-related restrictions. Gov. Cuomo recently announced that New York has formally adopted the CDC Guidance confirming that businesses can allow fully vaccinated individuals to not wear masks or socially distance on premises. New York businesses nonetheless remain authorized to require masks and social distancing for their patrons and employees within their establishments. Unvaccinated individuals must continue to wear masks and be socially distanced in most public settings. Moreover, most business capacity restrictions, which were based on a percentage of the businesses’ maximum capacity, have ended in New York. The only caveat here is that individuals are still required to socially distance unless they are fully vaccinated or have had a recent negative test.[2]

New York’s policy applies across most commercial settings, including but not limited to offices, food services, retail stores, gyms and fitness centers, and personal care services. However, pre-K through 12 schools, public transit, nursing homes and health care settings, among others, are expressly exempt from this new provision and must continue to follow previously existing COVID-19 health guidance, i.e., mask wearing and social distancing, until more New York residents get vaccinated.

For New York businesses implementing the CDC Guidance, such as offices, retail stores, and food services, that operate below the current indoor social gathering limit of 250 people, fully vaccinated individuals do not need to wear masks or be socially distanced, but unvaccinated individuals must continue to wear masks and socially distance. In welcomed flexibility for employers, a business is permitted to apply the CDC Guidance to its entire facility or to a separate, designated portion thereof. Notably, for businesses operating under the 250-person indoor social gathering limit, proof of vaccination may be required through paper form, digital application or New York’s Excelsior Pass, or a business may simply rely on self-reporting of vaccination status, i.e., the honor system.

New Jersey joined New York’s efforts by removing most capacity restrictions and mask mandates applicable to business settings such as food services, retail, offices, gyms, and personal care services. Gov. Murphy’s Executive Order confirms that as of May 28, 2021, most of New Jersey’s COVID-19 restrictions will be stripped for both public and private settings.[3]

Gov. Lamont of Connecticut confirmed the cessation of his state’s business restrictions on May 19, 2021. As a result, (i) all sector rules have become guidance (except on certain mask mandates discussed below); (ii) all curfews on service at theaters, entertainment and recreation venues, and restaurants have been lifted; (iii) all capacity limits for indoor and outdoor gatherings have ceased; and (iv) social distancing continues to be required where possible. With respect to Connecticut’s mask mandate, masks will no longer be required when outdoors, unless social distancing is not possible; the use of indoor masks will continue; and the Connecticut Department of Public Health will issue additional guidance on the continued use of masks at some point in the future.[4]

New York, New Jersey and Connecticut are not alone in adopting (or planning to adopt) the CDC Guidance or in lifting many COVID-19 business restrictions. By way of example, Colorado[5] (May 14), Delaware[6] (May 21), Maryland[7] (May 15), North Carolina[8] (May 14), Ohio[9] (May 14) and Washington, D.C.[10] (May 21), have already announced that they will adopt the CDC Guidance. This will have a significant impact on businesses throughout the country, especially those that operate in more than one state and therefore are dealing with inconsistent local guidance and requirements.

Indeed, because many counties, cities and towns, such as Chicago, Illinois, and Seattle, Washington, are permitted to have stricter requirements and mask mandates than the states in which they are located, it is imperative that employers monitor and review their specific jurisdictions’ guidance. Further, given the rapid pace at which these COVID-19 restrictions and mask mandates are evolving, businesses are encouraged to reach out to a member of our Labor and Employment Group if they have any questions.

Authorship Credit: Justin Guilfoyle and Amy Traub


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