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New York’s revised mask rules pose challenges

By: Bennett Loudon//May 18, 2021

New York’s revised mask rules pose challenges

By: Bennett Loudon//May 18, 2021//

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Gov. Andrew Cuomo’s announcement Monday that the state’s mask mandate was being revised in accordance with federal recommendations was widely embraced, but still left many questions and confusion.

“It’s a trend in the right direction, it just creates so many challenges from an enforcement perspective,” said Kimberly Harding, a partner at Nixon Peabody LLP who specializes in employment and labor law.

The Centers for Disease Control (CDC) no longer recommends masks for fully vaccinated individuals in many circumstances. But the state’s updated guidance leaves it up to employers to determine the vaccination status of customers and does not include information about COVID-19-related policies, such when it’s necessary to quarantine.

Starting Wednesday, New York state is adopting the new CDC recommendations on masks for people who have been fully vaccinated against COVID-19.

Currently, about 62 percent of New York adults have received at least one vaccine dose and about 52 percent completed their vaccine series.

Under the CDC guidance, students in grades pre-kindergarten through grade 12, public transit users, homeless shelters, correctional facilities, nursing homes and healthcare settings will continue to follow the current guidelines requiring masks.

“New Yorkers have worked hard over the last year to prevent the spread of COVID and keep each other safe. That work has paid off and we are ecstatic to take this next step in the reopening of our beautiful state,” Cuomo said in a news release.

Some businesses can continue to require masks, but in most cases, vaccinated individuals will not be required to wear one. Unvaccinated individuals must continue to wear masks in all public settings.

Masks are still recommended indoors where vaccination status of individuals is unknown. Mask requirements by businesses must adhere to all applicable federal and state laws and regulations, according to the CDC guidance.

The recommendations apply to all commercial settings. Most business capacities — which are currently based upon percentage of maximum occupancy — will be removed. But businesses will still be limited by the space available for patrons or parties of patrons to maintain a social distance of six feet.

In cases where all patrons in an establishment or a separate area of the establishment have proof of vaccination, the six-foot rule can be eliminated.

Proof of full vaccination status can be provided by patrons through paper form, digital application or the state’s Excelsior Pass, according to state officials.

When the vaccination status of individuals is unknown, or patrons don’t have proof of vaccination, the six-foot social distancing rule still applies.

The rules also apply to events. For events with fewer than 250 people indoors, or 500 people outside, venues can require masks for all patrons and the state recommends masks indoors where vaccination status is unknown.

Social distancing of six feet will be required between parties unless all attendees have proof of full vaccination status.

Unvaccinated people and people with an unknown vaccination status must be spaced six feet apart in assigned sections. Masks will be required in indoor event settings, except while seated and eating or drinking.

Fully vaccinated people may be spaced directly next to one another at 100% capacity instead of six-foot spacing sections designated solely for fully vaccinated individuals.

Children under 12, who are not yet vaccine eligible, and under the age of 16, who have not yet been able to be vaccinated, may accompany and be seated with a vaccinated adult in a fully vaccinated section.

“Private businesses retain the right to require masks within their facilities,” said Kevin J. Mulvehill, office leader at Phillips Lytle LLP. “We have many conservative or risk adverse clients approaching this as a wait-and-see or not making immediate changes in order to allow further guidance to come out and to see really what the outcome of this is, whether there are concerns that arise or things go smoothly for other businesses.”

Meanwhile, some big-name companies such as Target, Starbucks and CVS have announced they are lifting their mask mandates for customers unless required by state law.

In New York state, individual companies will  be responsible for enforcing the new mask restrictions, which will require people to show proof of the vaccination either through a government issued card or the excelsior pass, he said.

Harding said she is getting a flood of inquiries from clients about the new mask guidance, mandatory vaccination policies and job postings.

“We’re really saying, if you don’t know the vaccination status of your patrons or your employees it’s still at least recommended, but not required by the DOH, that individuals continue to wear masks,” Mulvehill said.

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