Effective Monday, December 13, 2021, anyone entering an indoor public place in New York State must wear a face covering unless all individuals who enter that space are required to be vaccinated from COVID-19, pursuant to a directive from the New York State Department of Health.

The new requirements – which will remain in effect until at least January 15, 2022 – apply to all businesses that operate indoors across New York and include general business requirements as well as requirements specific to various industries.

Citing the recent increase in the seven-day average case rates and hospitalizations for COVID-19, a winter surge of the Delta variant and the new Omicron variant, New York State Acting Commissioner of Health Mary T. Bassett, M.D., M.P.H. issued a Commissioner’s Determination on Indoor Masking on Friday, December 10, 2021

The Department of Health has also issued Frequently Asked Questions to provide guidance to businesses and venues.

Requirements for All Indoor Public Places

As of December 13, 2021, all individuals over the age of 2 must wear a face covering in any indoor public place unless that indoor public place requires proof of vaccination as a condition of entry. Certain industries are subject to heightened requirements, summarized below.

Businesses cannot implement a “combination requirement.” They must either require full vaccination of all individuals entering the premises or require that all individuals wear face coverings. The Commissioner’s Determination applies to all “indoor public places” defined as “any indoor space that is not a private residence.”

This specifically includes:

• common areas in residential buildings
• concert halls
• indoor entertainment venues
• indoor sports stadiums
• office buildings
• recreational spaces
• restaurants
• shopping centers

This includes office spaces within commercial buildings. If an office space does not require proof of full vaccination as a condition of entry, all individuals must wear a mask at all times except when eating, drinking or alone in an enclosed room. Private events held indoors at a business or venue – for example, a wedding taking place at a privately-owned restaurant or venue – are also covered by the Commissioner’s Determination.

Businesses that implement a proof of vaccination policy must require proof of “full vaccination” for individuals 12 years old and older, and proof that children between 5 and 11 years old have received at least one dose of a COVID-19 vaccine. Children between 2 and 5 years old who remain ineligible for vaccination must wear a face covering.

“Fully vaccinated” is defined as 14 days past an individual’s last vaccination dose for their vaccine series. Proof of an FDA- or WHO-approved COVID-19 vaccine is acceptable. Acceptable forms of proof include the New York State Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, the NYC COVID Safe app, a CDC Vaccination Card or other official immunization record as proof of vaccination. Neither the Commissioner’s Determination nor the FAQs discuss what, if any, proof of identification must also be provided. Nor do they discuss what records businesses must keep, if any, to show that they are in compliance with these new requirements.

The Commissioner’s Determination and the FAQs do not address how businesses should respond to requests for reasonable accommodations from guests or employees because of a disability or by employees because of a sincerely held religious belief or other reason required under federal, state, or local law. The Commissioner’s Determination generally states that it shall not be interpreted as being inconsistent with the Americans with Disabilities Act, workplace safety guidelines, or applicable federal regulations, but provides no details on how businesses should address guests or employees who state they are unable to comply with a mandatory vaccination policy because of their religion or disability.

Impact on New York City Businesses

The Commissioner’s Determination follows the announcement last week by Mayor Bill de Blasio of upcoming changes to the Key to NYC vaccination requirement for indoor dining, fitness, entertainment and performance venues, and a new private sector employer vaccination mandate. As of December 10, 2021, no official orders had been issued by the Mayor or City Health Commissioner concerning these changes. According to the Mayor’s public statements, businesses covered by Key to NYC will be required as of December 14 to verify that all individuals 5 years old and older have received at least one dose of a COVID-19 vaccine. As of December 27, Key to NYC businesses will be required to verify that all individuals 12 years old and older have received a full vaccination series (i.e., at least two doses of the Pfizer or Moderna vaccines, and one dose of the Johnson & Johnson vaccine). As of December 27, all private sector employers not already covered by Key to NYC must require their employees to have received at least one dose of a COVID-19 vaccine.

Businesses covered by the Key to NYC requirements who do not want to implement mandatory masking in their businesses as of December 13 to ensure they are complying with the Commissioner’s Determination. They must begin verifying that guests between 5 and 11 years old have received at least one dose of a COVID-19 vaccine, and that guests and employees 12 years old or older have received all required doses (not including boosters) of a COVID-19 vaccine at least fourteen days prior to entering the businesses. Otherwise, restaurants and bars offering indoor dining and other Key to NYC businesses will need to reimplement mandatory masking policies for all guests and employees indoors except when actively eating or drinking.

Additional Industry-Specific Requirements

In addition to the general requirements discussed above, the Commissioner’s Determination includes a number of heightened mask and face covering requirements for various industries. All of the following requirements are in place until the Commissioner’s Determination is modified or rescinded.

Health Care Settings
All personnel must wear a face mask, and all visitors age 2 or older able to medically tolerate a face covering must wear a face covering, regardless of vaccination status in accordance with applicable CDC exceptions.

Adult Care Facilities
All personnel providing direct medical care must wear a face mask regardless of vaccination status. All personnel must wear a cloth face covering at a minimum in other settings, in accordance with applicable CDC exceptions. All visitors older than 2 and able to medically tolerate a face covering must wear a face covering, subject to applicable CDC exceptions.

P-12 School Settings
All teachers, staff, students and visitors to P-12 schools over the age of 2 and able to medically tolerate a face covering are required to wear a face covering regardless of vaccination status. This requirement extends to any gathering on school grounds that addresses or implements educational matters where students may reasonably be expected to be present. For public meetings, if officials cannot guarantee compliance with masking requirements, they are advised to allow for full virtual access to meetings. These requirements do not provide for “mask breaks” nor do they provide for an exception to the masking requirement if social distancing is maintained.

Correctional Facilities and Detention Centers
Incarcerated and detained persons and staff must where facial coverings where social distancing cannot be maintained in accordance with applicable CDC exceptions for eating and sleeping. All visitors over the age of 2 who are able to medically tolerate a face covering must wear a face covering in accordance with applicable CD exceptions.

Homeless Shelters
All clients, visitors, staff, and volunteers over the age of 2 who are medically able to wear a face covering must wear a face covering regardless of vaccination status when social distancing cannot be maintained and in accordance with applicable CDC exceptions for eating and sleeping.

Public Transportation and Transportation Hubs
All persons over the age of 2 who are able to medically tolerate a face covering must wear a face covering when indoors on public transportation or in transportation hubs regardless of vaccination status, in accordance with applicable CDC exceptions.

Enforcement and Penalties

The Commissioner’s Determination will be enforced by local health departments. Businesses and individuals that violate the Commissioner’s Determination will be subject to a fine of up to $1,000 per violation.

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