On December 10, following an earlier announcement by the Governor, the Department of Health (DOH) issued a Commissioner’s Determination and an expanded FAQ on indoor masking pursuant to authority under New York State regulation 10 NYCRR 2.60. The expanded masking requirements were issued in response to surging COVID-19 caseloads in New York and concerns about the emergence of the omicron COVID-19 variant in the state and the possible impacts of its spread during the winter season. The commissioner’s findings noted the DOH’s concern about travel and family gatherings over the holiday season and highlighted a number of recent studies reinforcing how effective proper mask use can be in limiting the transmission of COVID-19. The provisions of the new requirements will be enforced by local health departments, and violations carry a possible fine of up to $1,000 for each infraction.
The new requirements take effect today, December 13, and are broken down by setting type: all public spaces (other than those covered below), health care settings, adult care facilities regulated by the DOH, P-12 schools, homeless shelters, public transportation and transportation hubs, and correctional facilities and detention centers. We have included summaries of the guidance for each setting below. The guidance is in place until otherwise modified or rescinded, unless otherwise noted.
All Public Spaces (Other Than Those Covered Below):
- The DOH adopts Centers for Disease Control and Prevention (CDC) guidance and requires all persons 2 years of age and older who are able to medically tolerate a face mask to wear an appropriate mask, regardless of vaccination status, in any indoor public spaces that are not private residences.
- The requirement does not apply to indoor public areas requiring proof of vaccination status as a condition for entry.
- These provisions will remain in effect until January 15, 2022.
Health Care Settings:
- Personnel — Health care personnel must adhere to CDC recommendations for face masks in health care settings regulated under Articles 28, 36 or 40 of the Public Health Law. All personnel, regardless of vaccination status, must wear appropriate face masks in accordance with CDC guidance.
- Visitors to Regulated Facilities — All visitors to regulated health care facilities, 2 years of age and older, regardless of vaccination status, must wear appropriate face masks where recommended by CDC guidance.
Adult Care Facilities (ACFs) Regulated by the DOH:
- All personnel, regardless of vaccination status, must wear appropriate face masks if providing direct care, and staff must at a minimum wear a cloth face covering in other settings.
- Visitors to ACFs: All visitors to regulated ACFs, 2 years of age and older, regardless of vaccination status, must wear appropriate face masks in facilities where recommended by CDC guidance.
P-12 Schools:
- The DOH adopts CDC guidance on universal masking for teachers, staff, students and visitors in P-12 schools, 2 years of age and older, regardless of vaccination status.
- Any gathering on school grounds addressing or implementing educational matters where students may be present requires universal masking as well.
- Notably, the CDC requirements here do not provide for “mask breaks” during the school day, nor do they provide for an alternate requirement based on social distancing.
Homeless Shelters:
- The DOH adopts CDC guidance and requires all clients, visitors, staff and volunteers 2 years of age and older who are able to medically tolerate a face mask to wear an appropriate mask, regardless of vaccination status, when social distancing cannot be maintained.
Public Transportation and Transportation Hubs:
- The DOH adopts CDC guidance and requires all persons 2 years of age and older who are able to medically tolerate a face mask to wear an appropriate mask, regardless of vaccination status, while inside conveyances or indoors at transportation hubs.
Correctional Facilities and Detention Centers:
- Incarcerated and Detained Persons and Staff: The DOH adopts CDC guidance and requires all incarcerated and detained persons and staff to wear appropriate masks or face coverings where social distancing cannot be maintained.
- Visitors: The DOH adopts CDC guidance and requires all visitors 2 years of age and older who are able to medically tolerate a face mask to wear an appropriate mask, regardless of vaccination status.
The Manatt team will continue to monitor the enactment of the expanded requirements and looks forward to updating you as additional insights become available.