Client Alert 
December 13, 2021

Per our previous Client Alert, New York State announced that effective today, December 13, 2021, masks are now required to be worn in all indoor public places statewide unless the business or venue requires all individuals to provide proof of full vaccination in order to enter (“Mask Rule”). The State has now issued FAQs that clarify the requirements of the Mask Rule, both generally and on an industry-specific basis. The State has also prepared posters that can be displayed at the business/venue’s option, depending on whether proof of full vaccination or masks will be required. The most pertinent additional guidance is summarized below.

General Guidance

  • The Mask Rule applies to all indoor places other than a private residence.
  • Accordingly, all businesses in New York State are subject to the requirements, whether publicly owned or owned by private business entities, including office spaces (unless someone is alone in an enclosed room), office buildings, restaurants, bars, hotels, retail and grocery stores, pharmacies, recreational spaces, gyms and fitness centers, indoor entertainment venues, concert halls, indoor sports stadiums, houses of worship and common areas in residential buildings.
  • The Mask Rule applies to all individuals, including employees, patrons, visitors and guests.
  • If implementing a vaccination requirement:
  • Anyone 12 years of age or older must be fully vaccinated;
  • Children ages 5–11 only have to show proof of having had at least one dose of the COVID-19 vaccination; and
  • The business may allow children under 5 into the business without masks being required of everyone, but children over 2 must continue to wear a mask.
  • Businesses may not “mix and match” – either everyone must provide proof of vaccination, or everyone must wear a mask regardless of vaccination status.

Hospitality-Specific Guidance

  • If a food service business is requiring masks instead of proof of full vaccination, patrons may only remove their mask while actively eating or drinking.
  • Private events held anywhere other than a private residence are subject to this requirement.
  • A business or venue holding private events must choose whether it will implement the full-vaccination requirement or a mask requirement that then must be followed in its entirety throughout the facility at all times each day.

Interaction with Key to NYC Program

  • Businesses subject to the Key to NYC Program must either:
  • Immediately require proof of full vaccination (instead of just one dose of a two-dose vaccine) for all individuals over 12 years of age before that requirement otherwise goes into effect on December 27, 2021 and require proof of at least one dose of a COVID-19 vaccine for children 5-11 years old, or
  • Continue admitting partially-vaccinated patrons until December 27, 2021 but require all patrons and staff to wear masks inside the premises as set forth above.
  • As a reminder, effective tomorrow, December 14, 2021, children 5-11 years old must show proof of at least one dose of a COVID-19 vaccine to dine indoors, irrespective of the Mask Rule.

Interaction with NY HERO Act

The NY HERO Act remains in place, and businesses that were not previously requiring all employees to be fully vaccinated in order to report to work in person may need to revise and redistribute their HERO Act Prevention Plan to address the updated face covering or full vaccination requirements.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.

This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.