NYS Adopts New CDC Guidance on Mask Use and Social Distancing for Fully Vaccinated Individuals
"The following is shared from Coughlin & Gerhart, LLP and is summarized from the May 17th Press Release you can find here:
You can also view the NYS/CDC Guidance Summary sheets here.
"New masking guidance at businesses
For fully vaccinated individuals – Noting that "the State will authorize businesses to continue to require masks for all in their establishments, consistent with the CDC guidance," the new guidance provides that "vaccinated individuals will not be required to wear a mask.
For unvaccinated individuals - The new guidance provides that "under both CDC and state guidance must wear masks in all public settings."
For an unknown vaccination status – The new guidance provides that "[t]he Department of Health strongly recommends masks in indoor settings where vaccination status of individuals is unknown. Realizing that many individuals will not have or will refuse to provide PV, the guidance adds: "This recommendation will apply across commercial settings, including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among other settings."
As a caveat, the new guidance reminds business owners that "[m]ask requirements by businesses must adhere to all applicable federal and state laws and regulations."
New business capacity rules
The new guidance removes "maximum capacity" limits for business, effective May 19th, but retains the need to limit occupancy by the space needed for patrons "to maintain the required social distance of 6 feet."
For fully vaccinated individuals - The new guidance provides that "given that the CDC has advised that fully vaccinated individuals do not need to maintain social distance, businesses may eliminate the 6 feet of required social distancing, and therefore increase capacity, only if all patrons within the establishment -- or a separate designated part of the establishment -- present proof of full vaccination status."
For unvaccinated individuals or if the vaccine status is unknown – The new guidance provides that "where vaccination status of individuals is unknown and for patrons who do not present proof of full vaccination status, the required social distance of 6 feet still applies until more New Yorkers are fully vaccinated. This change will apply across all commercial settings, except the exempt settings outlined by the CDC."
New small- and large-scale event rules
The new guidance provides that "[s]mall-scale events will be able to apply the revised business mask and capacity rules...[F]or events below the State's social gathering limit of 250 indoors or 500 outdoors, event venues will be able to require masks for all patrons -- and DOH strongly recommends masks in indoor settings where vaccination status is unknown -- and social distancing of 6 feet will be required between parties of attendees, unless all attendees present proof of full vaccination status. Unvaccinated people should still wear masks."
For large-scale events that exceed the State's social gathering limits, the new guidance provides that "event venues will only be limited by the space available for patrons or parties of patrons to maintain the required distance," as follows:
Unvaccinated attendees and attendees who have an unknown vaccination status must be spaced 6 feet apart in assigned sections. Masks will be required in indoor event settings, except while seated and eating or drinking.
Fully vaccinated attendees may be spaced directly next to one another at 100 percent capacity instead of 6 feet apart in assigned sections that are designated solely for fully vaccinated individuals. Masks are optional. Venues must verify vaccination status to take advantage of reduced social distancing requirements.
Children under the age of 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.
For large-scale events, proof of recent negative COVID-19 test result for attendees who are over the age of four remains required for unvaccinated attendees in indoor event settings above the State's social gathering limit but will become optional in outdoor event settings.
How to determine vaccination status?
In blissful simplicity, the new guidance provides that "[p]roof of full vaccination status can be provided by patrons through paper form, digital application, or the State's Excelsior Pass." The new guidance says nothing about the "paper form" needed or whether the business must retain the POV if ever called upon to prove this was obtained in the first place.
What to do?
Do these new protocols apply to employers? Yes? No? Maybe? As written, the guidance is cast in terms of applying to a "business." For example the guidance expressly provides that "[t]his provision applies across most commercial settings, including but not limited to retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among other settings." Of course, a business can also be an employer, but not all employers are involved in commerce and the guidance does not mention public sector, non-profits, and construction or manufacturing concerns. It is likely that the guidance was unartfully drafted, but should be read to cover most employers.
The new guidance allows for the relaxation of masking and social distancing rules but does not require relaxation. Given the uncertainty of its application to all employers, many employers may want to "go slow" and consider all of the ramifications of relaxing masking or social distancing protocols. Also, for our private sector employers, beware of the HERO Act, the recently enacted New York law which allows employees to voice complaints of feeling unsafe due to airborne infections risks or to report an employer for not complying with all federal and state safety laws and regulations. Expect that many employees will claim the relaxation of masking and social distancing has created an unsafe workplace or that the employees on the newly created HERO Act joint health and safety committees wish to discuss the issue.
Many employers and business owners do not want to become the "vaccination police." Even fewer want to hold onto someone's POV. Consider POV practices and policies that will allow for the systematic scrutiny or review of POV in a manner which will be useful later if called upon to show compliance with the new guidelines but avoid becoming a document retention nightmare. On the one hand, a loose policy of "carding" an individual may be difficult to prove later. On the other hand, if an employer wants to retain a copy of an employee's POV or certification of POV, this could prove challenging and any such records should be kept in a separate, confidential system of records. The NYS DOH website refers to the "honor system" which seems to have a lot of pitfalls. Perhaps a "digital application," or an individual's self-certification, is the way to go. Moreover, no employer should ever ask an employee "why" he or she did not get vaccinated given the disability and religious exemption issues.
Now is the time to update your vaccination masking, social distancing and other policies required by the HERO Act. Consult with C&> employment counsel on how to best navigate the challenges presented by the new masking and social media protocols and the HERO Act."
These changes became effective on May 19th, 2021. If you have any questions or concerns regarding these changes and how they impact your business, we recommend reaching out to Ronitta at Coughlin and Gerhart.