Starting today, May 19, 2021, New York State will adopt the Centers for Disease Control and Prevention’s (CDC) Interim Public Health Recommendations for Fully Vaccinated People for most businesses and public settings. The CDC’s guidance provides, among other things, that fully vaccinated people may resume activities without wearing masks or physically distancing (except where required by federal, state, local or other laws, rules and regulations, including local business and workplace guidance).

IN DEPTH

REVISIONS TO NEW YORK STATE’S REOPENING GUIDELINES

New York State will revise its reopening guidelines as follows in order to implement the CDC’s guidance:

• Mask Rules for Businesses: Businesses may continue to require masks for everyone in their establishments, but in most settings, vaccinated individuals will not be required to wear a mask. Unvaccinated individuals, under both CDC and state guidance, must wear masks in all public settings. Both the New York State Department of Health and New York City’s Health Commissioner recommend continued mask use in indoor settings where individuals’ vaccination status is unknown. This recommendation applies across commercial settings, including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barbershops and other personal care services.

• Capacity Rules for Businesses: Most business capacity restrictions, currently based on the percentage of maximum occupancy, will be removed on May 19. Businesses will only be limited by the space available for patrons or parties of patrons to maintain six feet of distance (the standard social distance requirement). If all patrons within the establishment show proof that they have been fully vaccinated, businesses can eliminate the standard social distancing requirement (thus increasing capacity). Patrons can show proof of full vaccination status by hard copy, digital app or New York State’s Excelsior Pass.

• Small- and Large-Scale Event Rules:

  • Small-Scale Events: Events that fall below New York’s social gathering limit (250 people for indoor events; 500 people for outdoor events) can require masks for all patrons and “social distancing will be required between parties of attendees, unless all attendees present proof of full vaccination.” New York State still recommends that unvaccinated people continue to wear masks at events.

  • Large-Scale Events: For events exceeding New York State’s social gathering limits, event venues will be limited as follows:

    • Unvaccinated attendees and attendees whose vaccination status is unknown must be spaced six feet apart in designated sections. Masks are required for indoor event settings, except while seated and eating or drinking.

    • Fully vaccinated attendees are not subject to capacity or social distancing requirements and may be seated directly next to each other at 100% capacity. To take advantage of these reduced social distancing requirements, event venues have to verify attendees’ vaccination status (e., proof of vaccination through hard copy, digital app or New York State’s Excelsior Pass.)

BUSINESS CONSIDERATIONS

The CDC’s abrupt change to its recommendations for fully vaccinated people has led to a cascade of states and local governments revising and easing their own mask and social distancing restrictions over the past few days and confusion among employers on how to best (and safely) move forward.

Businesses must first confirm that these new rules apply to their industry. New York’s new rules do not apply to all businesses (i.e., healthcare), whereas other federal and state reopening guidelines and restrictions still apply (i.e., the CDC’s and Occupational Safety and Health Administration’s (OSHA) industry guidelines and New York State’s industry-specific Reopening Guidelines). Businesses that are eligible to take advantage of this ease in restrictions can choose to retain their mask and social distancing policies in place for now or figure out whether implementing these new rules is in their best interest. Factors to consider when deciding whether to adopt these new rules include figuring out: (1) how much of the workforce is vaccinated; (2) how much of the workforce will get vaccinated and (3) whether to designate certain areas of the workspace as mask-free or social distance-free zones and how to do so in a non-discriminatory manner. Businesses must still make sure to abide by federal, state and local anti-discrimination laws (i.e., the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964) when asking employees whether they have been fully vaccinated and determining whether to implement these new rules in the workplace.