February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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The State of Face Covering Requirements in New York

On June 23, 2021, the New York State Department of Health issued an Emergency Regulation requiring non-fully vaccinated individuals to wear face coverings in workplaces and other public settings. The publication of this Emergency Regulation comes at the heels of Governor Cuomo’s June 15, 2021 announcement that New York Forward industry guidance would become optional, effective immediately, for offices, retail, food services, gyms, and most other commercial settings.

Under the Emergency Regulation, any employee present in the workplace who is not fully vaccinated – meaning two or more weeks have passed since receipt of the final dose of any COVID-19 vaccine approved or authorized for emergency use by the FDA – must wear a face covering when in direct contact with customers or members of the public and when unable to maintain six feet of distance from others. In food service establishments, non-fully vaccinated employees must wear face coverings at all times while at work.

The Emergency Regulation also requires businesses to continue providing, at their own expense, acceptable face coverings for employees. Acceptable face coverings include, but are not limited to, cloth masks, surgical masks, and N-95 respirators.  Of note, unlike the New York Forward industry guidance, the Emergency Regulation does not require employers to provide training to employees on the proper use of face coverings.

Regarding customers, visitors, and others who may be present in the workplace, the Emergency Regulation states that “any person who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or face-covering when in a public place and unable to maintain, or when not maintaining, [six feet of] distance, unless such person is fully vaccinated.” Additional requirements apply in other settings, including schools, large event venues, health care settings, and other setting where mask use is otherwise required by federal or state law or regulation.

Businesses and individuals found in violation of this regulation are subject to a maximum fine of $1,000 per violation as well as any other civil or criminal penalties provided by law.

© 2023 Proskauer Rose LLP. National Law Review, Volume XI, Number 182

About this Author

Harris M Mufson, Class/Collective Action Attorney, Proskauer
Senior Counsel

Harris Mufson is a senior associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Whistleblowing & Retaliation Groups.

Adept at counseling clients at every turn of the litigation process, Harris represents employers in a variety of industries, including financial services, health care, entertainment, sports and legal, with respect to a wide range of labor and employment law matters. These include compensation disputes, employment discrimination and retaliation, whistleblowing,...

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

Alex Downie  New York  Labor & Employment Law
Law Clerk

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes...