Today, New York Governor Kathy Hochul announced a new mask mandate for private businesses that do not require proof of vaccination for entry, which will take effect Monday, December 13, 2021 and remain in place through January 15, 2022.  The announcement is part of the State’s effort to combat the “winter surge” from the COVID-19 pandemic, along with the spread of the Omicron variant.

The announcement requires businesses to implement a mask requirement for all patrons (not a defined term) two years and older, unless the business requires proof of vaccination as a condition of entry.  The announcement applies broadly to “indoor public places,” which based on the Acting Commissioner of Health’s Determination, shall mean any indoor space that is not a private residence, and thus includes private employers. There are specific requirements for certain settings, such as healthcare settings.The Governor’s announcement appears to liken the new vaccine or mask mandate to the Key to NYC requirements, whereby certain indoor businesses must impose vaccine requirements on patrons and staff.  Noncompliant businesses may face criminal penalties and civil fines of up to $1,000 for each violation. As a reminder, employers that implement a mask policy for employees should provide for adequate personal protective equipment at no cost to the employee.

Notably, the new mask mandate is in addition to existing requirements under the NY HERO Act. As we previously reported, the NY HERO Act requires that all employees wear a mask at worksites with a mix of vaccinated and unvaccinated employees, but does not demand masks at fully vaccinated worksites.  This mandate goes a step further—if a business does not require “proof of vaccination as a condition of entry,” all individuals must wear a mask. It is not clear yet how this impacts businesses that allow entry to an individual who has an exemption to an existing vaccination mandate as a reasonable accommodation for a disability or sincerely held religious belief, whereby the person is permitted to enter the workplace with a mask.

We will continue to monitor developments regarding the announcement and update this post based on any new information. However, on Wednesday December 15, the NYC guidance on the city-wide private employer vaccine mandate will be released and may touch on how to handle masking and managing workplaces where there are both vaccinated and unvaccinated employees (who have approved exemptions as a reasonable accommodation).

*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.