New York State Masking and Vaccine Requirements: What Employers Must Know
Posted by [email protected] on Jan. 7, 2022 / Subscribe 0
New York State Masking and Vaccine Requirements: What Employers Must Know
By: Alexandra Lapes and Tracey I. Levy
Recent headlines have alerted New York employers to the state’s newest requirement of full vaccination or masking for all businesses, but there are key compliance aspects to the state’s mandate that are not clearly covered in the mainstream news reports. The vaccination or masking requirement took effect December 13, 2021, and presently is set to be reevaluated, and possibly extended, on January 15, 2022.
- The mandate is full vaccination or full masking - no mix and matching permitted
Businesses that had relaxed masking requirements for employees who are fully vaccinated, while requiring masks for those who are not vaccinated, must abandon this hybrid approach. The state's FAQs regarding the new mandate make clear that an employer must either require everyone on premises to be fully vaccinated or require everyone -- regardless of their vaccination status -- to wear a face mask at all times.
An employer can choose – either a full vaccine mandate or a masking requirement – but once determined, the chosen requirement must apply in its entirety to all staff, patrons, and visitors throughout the premises. If a vaccine mandate is not applied uniformly to all, then an employer must ensure everyone in its workplace complies with the masking requirement.
- Full vaccination currently means up to two doses
New York State defines “fully vaccinated” in accordance with the CDC’s definition, 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).
- Face masks can be removed only for limited circumstances of limited duration
In offices, masks can be removed only when necessary to eat or drink, or when an employee is alone in an enclosed room. Even in restaurants and bars, unless the business is strictly enforcing a full-vaccination requirement for everyone on premises, patrons can only remove masks when eating or drinking; restaurant staff must be wearing a face mask at all times. For tv and film production, the talent can remove a face mask during filming, but must maintain six feet of distance from all others, such as the crew and production staff, and masks must otherwise be in place for everyone on premises. Hospital and healthcare settings must continue to ensure all employees and visitors are masked at all times, regardless of vaccination status.
- Granting a vaccination exception for those with accommodations means the employer does not have a “full vaccination” program
Employers who grant exemptions as an accommodation for individuals because of a medical, religious or other legally protected characteristic and permit those individuals entry on the premises apparently must then implement a masking requirement for everyone. While the impact of accommodations on the full vaccination requirement is not explicitly addressed in the FAQs, one specific FAQ juxtaposes the prohibition on a hybrid approach of full vaccination or masking with a reference to the continuing responsibility of "unvaccinated individuals, including those with medical exemptions” to wear masks in accordance with CDC guidance.
The FAQs also footnote that they should be interpreted consistently with the Americans with Disabilities Act, workplace safety guidelines and applicable regulations. It therefore appears that, when exceptions are made and a full-course vaccine requirement cannot be maintained in its entirety, all individuals in the workplace must be held to a masking requirement.
Pulling it together, with consideration of local and pending federal mandates
Employers with locations in New York City should be mindful the city updated its “Key to NYC” program on December 15, to require employers implement a vaccine mandate and require employees who work in-person or interact with the public to show proof of at least one dose of a COVID-19 vaccine by December 27, and proof of a second dose within 45 days thereafter.
In addition to the layers of requirements issued by New York State and New York City, employers nation-wide with 100 or more employees need to anticipate that they will be subject to vaccination or weekly testing requirements under an OSHA directive, which is currently effective, yet pending further action by the Supreme Court.
Keep checking for new developments
The only thing certain about these requirements is that there could be more changes in the weeks to come. Businesses should review their policies and procedures to ensure compliance with the current mandates and continue to check dedicated COVID-19 government websites and get legal advice to ensure compliance with any new requirements.
0 Comments