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Please find the Health Commissioner’s December 10, 2021 Determination on Indoor Masking Pursuant to 10 NYCRR 2.60.
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What is the new requirement?
On December 10, 2021, Governor Kathy Hochul announced masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement. This major action to address the winter surge comes as COVID-19 cases and hospitalizations rise statewide and is in alignment with the CDC’s recommendations for communities with substantial and high transmission. The State Health Commissioner issued a determination solidifying the requirement.
Does this mean vaccines aren’t working?
No! The State Department of Health has produced nation-leading studies, published in the CDC’s MMWR and the New England Journal of Medicine, which demonstrate the COVID-19 vaccines’ effectiveness – particularly in preventing severe disease. The Department continues to urge eligible New Yorkers of all ages to get fully vaccinated and boosted as soon as possible.
So why did the State implement the new requirements?
The new measure brings added layers of mitigation during the holidays when more time is spent indoors shopping, gathering, and visiting holiday-themed destinations. Since Thanksgiving, the statewide seven-day average case rate has increased by 43% and hospitalizations have increased by 29%. While the percentage of New Yorkers fully vaccinated continues to increase—gaining 2% from Thanksgiving weekend to now—the uptick is not fast enough to completely curb the spread of the virus, particularly among communities with low vaccination coverage.
When do the new requirements go into effect?
The new requirements go into effect at 12:01 a.m. on Monday December 13, 2021 through January 15, 2022, at which time the State will re-evaluate next steps.
Do the new requirements (via the December 10 Commissioner’s Determination) supersede the previous requirements (the August 27 Commissioner’s Determination) on Indoor Masking?
Yes. This determination supersedes the August 27, 2021 determination that required face masks in certain settings such as healthcare settings, schools, correctional facilities and while on public transport or in transportation hubs. These settings are all still covered under the current masking determination.
You can read the State Health Commissioner’s December 10, 2021 Determination Letter.
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How is ‘indoor public place’ defined, and what type of businesses and venues are included under this requirement?
Indoor public place is defined as any indoor space that is not a private residence. This means businesses and venues New Yorkers typically frequent that are either publicly owned or owned by private business entities. This includes indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings.
Does this policy apply to office spaces?
Yes, the requirement applies to all non-private residences, including office spaces. If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room.
What about businesses covered under the NY HERO act?
Employers must continue to comply with the NYS Health and Essential Rights Act (NY HERO ACT), which affords protections for private sector employees against an airborne infectious disease outbreak by requiring employers to ensure employees wear appropriate face coverings in accordance with Department of Health guidance. For purposes of complying with the NY HERO Act, the Commissioner’s Determination constitutes Department of Health guidance related to face coverings, meaning employers must ensure their employees adhere to masking requirements or require proof of vaccination as a condition of entry into the business.
If eating or drinking is a part of my business or venue establishment, and I have a mask requirement in place, what am I supposed to do when guests are eating or drinking?
Patrons of your establishment can remove their masks only while they are actively eating or drinking, at which time appropriate social distancing measures, proper air ventilation, and filtration methods are highly recommended. Masks should be worn in all other instances outside of physical eating or drinking.
What if I’m eating or drinking at a restaurant or bar?
If a business or venue does not require proof of full vaccination, all employees and patrons must have their mask on at all times regardless of vaccination status, except when necessary to eat or drink.
What about private events held at a public indoor space, such as a wedding hosted at a restaurant or venue?
Private residences are not included. However, for private events held indoors at a business or venue—for example, a wedding taking place at a privately-owned restaurant or venue—the business entity/venue must require masking or proof of vaccination as a condition of entry.
What exactly are the requirements?
Any person, past their second birthday and medically able to tolerate a face covering, must wear an appropriate mask while in any indoor place, regardless of vaccination status. However, businesses and venues can choose to implement a vaccination requirement, requiring proof of vaccination as a condition of entry inside the business or venue. Whichever requirement is selected, it must apply to all within the business/venue’s capacity, including staff, patrons, visitors, and guests. A business and venue cannot do a “combination” requirement. Please see below for the details of each requirement option:
Business/Venue Proof of Vaccination Requirement
Businesses and venues that implement a proof of vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses/venues can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe app, a CDC Vaccination Card, or other official immunization record.
In accordance with CDC’s definition, fully vaccinated is defined 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). The State also accepts WHO-approved vaccines for these purposes. Parents and guardians can retrieve and store an Excelsior Pass and/or Excelsior Pass Plus for children or minors under legal guardianship.
Vaccines for children ages 5-11 have only been available since November 2021. Therefore, in order to enter a business or venue that implements a proof of vaccination requirement, children ages 5 – 11 only have to show proof of having had at least one dose of the COVID-19 vaccination.
Vaccines have been available for 16–17-year-olds since April 2021 and for 12-15-year-olds since May 2021. At the time of the determination, 63% of the 12-17 age group has been fully vaccinated in New York State.
Business/Venue Mask-Wearing Requirement
Businesses and venues that implement a mask requirement must ensure all patrons past their second birthday and medically able to tolerate a face covering wear a mask at all times while indoors, outside of physical eating or drinking.
Can a business or venue “mix and match”? For example, can a business or venue allow fully vaccinated patrons to be unmasked, but unvaccinated or partially vaccinated patrons to wear masks in the same indoor facility? What about allowing patrons to be unmasked when everyone in in the facility is fully vaccinated, but asking everyone in the facility to wear a mask when someone who is unvaccinated or partially vaccinated enters?
No. A business or venue must choose whether it will implement a full-course vaccine requirement or a mask requirement, which applies to both patrons and employees and then must be followed in its entirety throughout the facility at all times each day.
Continued Masking Requirements
Unvaccinated individuals, including those with medical exemptions, continue to be responsible for wearing masks, in accordance with federal CDC guidance. Further, the State’s masking requirements continue to be in effect for pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, health care, child care, group homes, and other sensitive settings per CDC guidelines.
New York State and the State’s Department of Health continue to strongly recommend mask-wearing in all public indoor settings as an added layer of protection, even when not required. Children 2 – 5 who remain ineligible for vaccination must wear a proper-fitting mask.
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I operate a food services business (e.g., restaurant or bar) that currently has outdoor, but enclosed or semi-enclosed space. Do I need to follow the same requirements for these spaces as I do for the indoor public spaces of my establishment?
Food services businesses that operate an outdoor, enclosed or semi-enclosed space with more than two sides must implement the same requirement across both their indoor and outdoor, enclosed or semi-enclosed spaces. This means both the inside and outdoor, enclosed or semi-enclosed spaces have either a proof of full-course vaccination requirement or mask requirement.
Outdoor dining spaces that have a temporary or fixed cover (e.g., awning or roof) and at least two open sides for airflow do not need to follow the same requirements as the indoor space of the restaurant. Mask wearing for patrons, except while patrons are actively eating or drinking, is strongly recommended, but not required. The appropriate social distancing measures are also highly recommended.
I operate a food services business (e.g., restaurant or bar) that has open, unenclosed space (e.g., no roof, two or fewer sides covered). Are there requirements for these spaces?
In this situation, mask wearing for patrons, except while patrons are actively eating or drinking, is strongly recommended, but not required. The appropriate social distancing measures are also highly recommended.
If eating or drinking is a part of my business or venue establishment, and I have a mask requirement in place, what am I supposed to do when guests are eating or drinking?
Patrons of your establishment can remove their masks only while they are actively eating or drinking, at which time appropriate social distancing measures, proper air ventilation, and filtration methods are highly recommended. Masks should be worn in all other instances outside of physical eating or drinking.
What if I’m eating or drinking at a restaurant or bar?
If a business or venue does not require proof of full vaccination, all employees and patrons must have their mask on at all times regardless of vaccination status, except when necessary to eat or drink.
What about private events held at a public indoor space, such as a wedding hosted at a restaurant or venue?
Private residences are not included. However, for private events held indoors at a business or venue—for example, a wedding taking place at a privately-owned restaurant or venue—the business entity/venue must require masking or proof of vaccination as a condition of entry.
How does the new policy work for salons and other personal care businesses that provide services which require customers to remove their face mask (e.g., facials, beard trimming, waxing of the upper lip)?
Given the nature of these services, salon and other personal care businesses are strongly encouraged to implement the State’s proof of vaccination requirement. However, businesses that do not implement such requirement may allow customers to briefly remove their face mask while receiving such services, under the condition that guests wear a face mask before and after receiving such services and at all other times while inside the facility. The employee performing these services must wear a face mask at all times.
Individuals receiving services that do not require mask removal (e.g., haircuts) must wear face masks at all times, unless the business implements the proof of vaccination requirement.
I operate TV or film production in New York State. If my entire production crew is not fully vaccinated by December 13th, does everyone have to wear masks while on-air or filming?
New York State’s new requirements apply to all indoor public places in all areas of New York State. The New York State Governor’s Office of Motion Picture and Television Development, in consultation with the New York State Department of Health, has established the following guidance for the production and broadcast of television and film, with regard to the Commissioner’s Determination:
Effective Monday, December 13, 2021, TV and film productions that do not implement a vaccination requirement for all individuals must ensure their operations are in accordance with the following:
I operate a business or venue with an indoor swimming pool, spa, or recreational aquatic spray grounds. How does the new policy work for me?
Given the nature of these activities, businesses or venues with indoor swimming pools, spas, or recreational aquatic spray grounds are strongly encouraged to implement the State’s proof of vaccination requirement. However, businesses or venues that do not implement such a requirement must implement a masking requirement and may only allow patrons to briefly remove their mask while actively in the water or if there is a strong likelihood that a mask will get wet. In these situations, appropriate social distancing measures and proper air filtration is highly recommended. Patrons and employees must otherwise wear a mask at all times when outside the water unless actively eating or drinking.
How does this policy apply to tanning facilities?
Given the nature of these services, businesses or venues that operate tanning facilities are strongly encouraged to implement the State’s proof of vaccination requirement. However, businesses or venues that do not implement such a requirement must implement a masking requirement and may allow patrons to briefly remove their mask when alone in a closed room during the act of tanning. Patrons and employees must otherwise wear a mask at all times.
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My locality already has COVID-19 requirements for businesses and venues? Which requirements do I follow now – New York State or local?
New York State’s new requirements apply to all indoor public places in all areas of New York State. Businesses/venues that are required to follow local proof of masking or vaccination requirements, must continue to follow such policies while also adhering to the Commissioner’s Determination. This means all patrons and staff inside an establishment must be either fully vaccinated or wear masks.
I operate a business or venue in New York City and already participate in the ‘Key to NYC’ program, what does the State’s new requirement mean for my business or venue?
New York State’s new requirements apply to all indoor public places in all areas of New York State, including for businesses and venues in New York City. This means all patrons and staff inside an establishment must be either fully vaccinated or wear masks.
The ‘Key to NYC’ program currently requires businesses and venues to ensure proof of at least one dose of the COVID-19 vaccine for entry. As the minimum requirement for the State is now full-course vaccination, if a business or venue in NYC wishes to admit partially vaccinated patrons then the business or venue must require all patrons and staff to wear masks inside the premise.
Until December 27, when the ‘Key to NYC’ program requirements update to requiring individuals to be fully vaccinated (rather than just provide proof of one vaccine dose), NYC businesses and venues may either:
How will these requirements be enforced?
It is our expectation that New Yorkers will understand the importance of following this requirement as we enter this holiday season where a surge in cases is expected. Enforcement will be done by the local health departments, and the maximum civil penalty is a $1,000 fine.
Who could receive the fine, the business or venue, or an individual in violation of the requirements?
Pursuant to regulation, individuals or business/venue entities that violate the determination are subject to a maximum fine of $1,000 for each violation. Local health departments can enforce these requirements.
What is considered fully vaccinated?
In accordance with CDC’s definition of fully vaccinated, full-course vaccination is defined as 14 days past an individual’s last vaccination dose in their initial vaccine series. This means an individual is 14 days past the second shot of the two-dose Pfizer-BioNTech or Moderna COVID-19 vaccine or 14 days past the one-shot Janssen/Johnson & Johnson COVID-19 vaccine.
What about fully vaccinated individuals who were vaccinated outside of the United States with a non-FDA-approved or authorized COVID-19 vaccine?
In accordance with CDC guidance, the State also accepts WHO-approved vaccines for these purposes.
What about a booster and/or additional dose?
While boosters and/or an additional dose of the COVID-19 is strongly recommended for all eligible New Yorkers, it is not currently required for business entry where proof of vaccination requirements are in place. This is consistent with CDC’s definition of fully vaccinated. For more information on boosters and additional doses, visit ny.gov/boosters.
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New York State has created resources to support New York businesses and venues in communicating the new requirements to their patrons.
The following materials can be displayed in your business or venue depending on which option the business or venue chooses to implement: proof of full-course vaccination or a mask requirement.
December 13, 2021: This poster can be printed and displayed by businesses with a mask requirement.
Also available in: Español.
Download
December 13, 2021: This poster can be printed and displayed by businesses requiring proof of vaccination.
Also available in: Español.
Download
December 17, 2021: Guidance on how to properly wear a mask.
Download
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