**UPDATE: On January 24, 2022, a Nassau County State Supreme Court struck down this COVID-19 mask or vaccination requirement statewide. Our post on this decision can be found here.**

New York Governor Kathy Hochul has announced that, effective December 13, 2021, masks will be required to be worn in all indoor public places in New York State unless the business or venue requires proof of full vaccination against COVID-19 as a condition of entry.  The measure will remain in effect until January 15, 2022, after which time the State will re-evaluate based on current conditions.

As set forth in the New York Department of Health Commissioner’s Determination on Indoor Masking effectuating this requirement, “indoor public place” means “any indoor space that is not a private residence.”  In frequently asked questions guidance on the new requirements, it elaborates that the definition includes indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, and common areas in residential buildings.

For businesses and venues that do not adopt a full-course vaccination requirement for entry, the Commissioner’s Determination states that “all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering/mask while in any indoor public place.”  In short, this means that in office-based and other covered businesses that do not require vaccination as a condition of entry, all individuals must wear face coverings at all times except when eating, drinking, or alone in an enclosed room.  It is noted that certain businesses and settings are subject to more onerous masking requirements under the Commissioner’s Determination, including healthcare settings, adult care facilities, homeless shelters, schools, and public transportation conveyances.

For businesses and venues that include food and/or drinks, “patrons can remove their masks only while they are actively eating or drinking, at which time appropriate social distancing measures, proper air ventilation, and filtration methods are highly recommended.”  Masks must be worn at all other times “outside of physical eating or drinking.”

With regard to businesses and venues opting for a vaccination requirement for entry, the Governor’s announcement provides that, “in accordance with CDC’s definition of fully vaccinated, full-course vaccination 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; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).”  As such, two doses of a two-shot vaccine would be required, except that children ages 5–11 need only show proof of having had at least one dose of the COVID-19 vaccination for purposes of satisfying an establishment’s vaccination requirement.  World Health Organization-approved vaccines will also be acceptable for purposes of compliance.  Businesses and venues that implement a proof of vaccination requirement can accept the New York State Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC Vaccination Card as acceptable proof.  Children ages 2–5 who are presently ineligible for vaccination must wear a proper-fitting mask.

The FAQ guidance makes clear that whether a mandatory vaccination or masking option is selected, “it must apply to all within the business/venue’s capacity, including staff, patrons, visitors, and guests” and that “[a] business and venue cannot do a ‘combination’ requirement.”

As to enforcement, the announcement states that “[a] violation of any provision of this measure is subject to all civil and criminal penalties, including a maximum fine of $1,000 for each violation” and that “[l]ocal health departments are being asked to enforce these requirements.”

It is reminded that private employers in New York City will soon be subject to a mandatory vaccination requirement (with no masking or testing alternative) under a recent declaration by the mayor.  Further, indoor dining, indoor fitness, and indoor entertainment venues and performances in New York City must presently require proof of vaccination in accordance with the “Key to NYC” program (as recently updated).

We will continue to monitor and report on further developments with regard to this new requirement.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

As a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group, Laura Fant frequently counsels on a wide variety of employment matters, including employee leave and accommodation matters involving…

As a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group, Laura Fant frequently counsels on a wide variety of employment matters, including employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act and related state and local laws. She also regularly drafts and advises on implementation and enforcement of employment and separation agreements, employee handbooks and company policies, as well as provides training on topics such as discrimination and harassment in the workplace, performance management, and the accommodation of physical and mental disabilities. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog.

Before joining the Firm, Laura was assistant general counsel to the City of New York’s Office of Labor Relations. Prior to that, she was law clerk to Judge Jose L. Fuentes of the New Jersey Superior Court, Appellate Division, and a judicial intern to Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York.