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Nothing fills the hearts of my team at HR Compliance Experts with holiday joy like a mid-December mask mandate! In fact, instead of an ugly sweater contest, I think we’re having an ugly holiday mask contest this year. (If you’re joking, you’re not funny, and if you’re serious, I hope your entire team quits the minute their holiday bonuses hit their bank accounts!) You should have been there when we learned that NY Gov. Kathy Hochul (not to be confused with Oregon Gov. Kate Brown (left), the undisputed ugly holiday mask champion for life) directed the state’s Department of Health (“DOH”) to issue a new mask mandate effective Monday, December 13, 2021. We were so excited that the walls of our virtual office were shaking! (OK, can we move this along, people have better things to do.)     

Effective Monday, December 13, 2021, the mask mandate remains in effect through January 15, 2022, when the DOH will “reevaluate based on current conditions.” In her statement, Gov. Hochul cited a “winter surge” in COVID-19 cases and hospitalizations throughout NY State as the reason for the new mandate. According to the state’s recently released guidance, “masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.” Further, “new business and venue requirements extend to both patrons and staff,” and “businesses and venues that implement a mask requirement must ensure all patrons two years and older wear a mask at all times while indoors.” 

The mask mandate defines an “indoor public place” as any indoor space that is not a private residence. That includes specific public settings, such as health care and adult care facilities, K-12 schools, correctional facilities, homeless shelters, public transportation centers and hubs, and “all indoor public places” not otherwise covered by the mandate. (So, in non-government speak, EVERYWHERE!) Violators of the mask mandate may be subject to a maximum fine of $1,000 per violation. 

The DOH issued a list of FAQs to answer some common questions and help clarify (now that is funny!) potential issues. For example:

Q: Does this policy apply to office spaces?

A: Yes, the requirement applies to all non-private residences, including office spaces. 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. 

Q: What about businesses covered under the NY HERO act?

A: Employers must continue to comply with the NYS Health and Essential Rights Act (NY HERO ACT)…For purposes of complying with the NY HERO Act, the Commissioner’s Determination constitutes Department of Health guidance related to face coverings, meaning employers must ensure their employees adhere to masking requirements or require proof of vaccination as a condition of entry into the business.

Q: What are the Details for a Business/Venue Proof of Vaccination Requirement?    

A: Businesses and venues that implement a proof of vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses/venues can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe app, a CDC Vaccination Card, or other official immunization record.

In accordance with CDC’s definition, fully vaccinated is defined as 14 days past an individual’s last vaccination dose in their initial vaccine series—14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine or 14 days past the one-shot Janssen/Johnson & Johnson vaccine. The State also accepts WHO-approved vaccines for these purposes. Parents and guardians can retrieve and store an Excelsior Pass or Excelsior Pass Plus for children or minors under their legal guardianship.    

Q: How will these requirements be enforced? 

A: It is our expectation that New Yorkers will understand the importance of following this requirement as we enter this holiday season, where a surge in cases is expected. Enforcement will be done by the local health departments, and the maximum civil penalty is a $1,000 fine. 

Q: Who could receive the fine, the business or venue, or an individual in violation of the requirements?

A: Pursuant to regulation, individuals or business/venue entities that violate the determination are subject to a maximum fine of $1,000 for each violation. Local health departments can enforce these requirements.    

Employers in NY State should also note that, if a mask policy is implemented for employees—i.e., if the employer does not require proof of vaccination to enter the workplace, so everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room—the employer must provide employees with an adequate supply of face coverings/masks at no cost to the employees. 

My team and I will continue to burn the midnight oil (you realize no one under the age of 90 knows what that means, right?) to monitor the state’s guidance and FAQs and provide updates as appropriate. In the meantime, get busy with your own ugly holiday mask contest…and don’t forget to send us pictures!   

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

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