Effective May 19, 2021, New York State has adopted the Centers for Disease Control and Prevention’s May 13 “Interim Public Health Recommendations for Fully Vaccinated People” for most commercial operations and public settings.  Questions remain, however, as to how employers can implement this guidance given that it may be difficult to determine who is fully vaccinated,¹ and how to maintain different safety rules simultaneously for different populations.  The recently passed NY HERO Act, which will impose new requirements in the coming weeks, further complicates the picture for New York employers.

To review, a May 19 announcement labeled “Reopening New York - Implementing CDC Guidance” states that the CDC guidance shall apply to “most commercial settings, including but not limited to retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barbershops, and other personal care services, among other settings” (the “Covered Businesses”).  Employers are included in the definition of “Covered Businesses”; thus, the guidance applies not only to patrons, but also to employees of Covered Businesses.  Meanwhile, unvaccinated people must continue to wear masks and maintain social distancing.

At the same time, consistent with CDC guidance, the state is requiring its pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings to continue to follow the state’s existing COVID-19 health guidance “until more New Yorkers are fully vaccinated.”

Essentially, a Covered Business can now choose one of two paths:  either continue its operations under New York’s existing COVID-19 health guidance, requiring masks and six feet of social distancing for employees and patrons, or follow the CDC’s Interim Public Health Recommendations for Fully Vaccinated People.  New York’s new guidance distinguishes: (1) businesses that do not congregate patrons and/or operate below the state’s social gathering limit of 250 people indoors or 500 outdoors, from (2) businesses that congregate patrons and operate above the state’s social gathering limits.  The state recommends that Covered Businesses continue to adhere to previous COVID-19 health guidance (masks and social distancing) where the vaccination status of employees or patrons is unknown.

Importantly, the state guidance does not relieve any Covered Business of its obligations under prior New York State Department of Health guidance, including requirements to maintain a safety plan; engage in, review and document daily health screenings; make available personal protective equipment; or log visitors and worksite cleanings.  Moreover, Covered Businesses must also be mindful that any mask requirements may have federal, state or local law implications (e.g., accommodations may be required under the Americans with Disabilities Act, Title VII or New York law for those who cannot wear certain face coverings).  Businesses still must review and affirm compliance with the applicable industry guidelines on the New York Forward website.

Guidelines for Covered Businesses that do not Congregate Patrons and/or that Operate Below the State’s Social Gathering Limit of 250 People Indoors or 500 Outdoors (e.g., businesses operating in retail, food services, and offices):

• If a Covered Business chooses not to follow the CDC guidance, then all individuals (vaccinated and unvaccinated) must wear masks and maintain six feet of social distancing.
• On the other hand, if a Covered Business elects to follow the CDC guidance, it may allow fully vaccinated individuals not to wear a mask and not socially distance themselves from other persons.
• Unvaccinated individuals must continue to wear masks in all public settings and must continue to socially distance themselves.  
• The Covered Business may apply the CDC guidance to its entire establishment, or a separate, designated part of the establishment.  In other words, employers can separate vaccinated and unvaccinated employees into different areas of their workplace.  (Of course, concentrating unvaccinated individuals into a smaller section of the workplace may increase the risk of COVID-19 transmission if other safety protocols are not robust.)
• Proof of full vaccination status may be requested by the Covered Business through paper documentation, digital application, or the NY Excelsior Pass, which verifies vaccines administered within New York State.  Alternatively, a Covered Business may rely on an individual’s self-reporting of vaccination status.  Although the state calls this the “honor system,” the phrasing implies that an employer must take affirmative steps to enable an individual to “self-report” their status, such as having employees attest that they are fully vaccinated.
• Previously imposed business capacity limitations have been fully removed, but social distancing otherwise remains in place; the state has noted, “Business capacity is only limited by the space available for patrons or parties of patrons to maintain the required social distance.”

Guidelines for Covered Businesses that Congregate Patrons and Operate Above the State's Social Gathering Limit of 250 People Indoors or 500 Outdoors (e.g., Event Venues, Sports Competitions, Performing Arts And Entertainment, Catering Halls, Conventions):

• Fully vaccinated attendees may be spaced directly next to one another at 100% capacity—instead of socially distanced—in assigned sections that are designated solely for fully vaccinated individuals. Masks are optional for these fully vaccinated persons.
• As a pre-condition to implementing fully vaccinated sections, eliminating social distancing, and increasing capacity, the Covered Business must require proof of vaccination and cannot rely on the “honor system.” Proof of full vaccination status may be requested by the Covered Business through paper documentation, digital application, or the NY Excelsior Pass.
• Unvaccinated attendees and attendees who have an unknown vaccination status must be spaced six feet apart in assigned sections. Masks will be required in indoor event settings, except while seated and either eating or drinking. An unvaccinated attendee older than age four attending an indoor event above the gathering limit of 250 persons must present proof of a recent negative COVID-19 test result (i.e., PCR/NAAT within 72 hours or antigen within six hours prior to admission). Outdoor events do not require proof of a recent negative COVID-19 test result.
• Children under the age of 12 who are not yet vaccine-eligible, and under the age of 16 who have not yet been vaccinated, may accompany and be seated with a vaccinated adult in a fully vaccinated section.
• Previously imposed business capacity limitations have been fully removed; the state has noted “Business capacity is only limited by the space available for patrons or parties of patrons to maintain the required social distance.”
• A Covered Business in this category can operate up to 100% capacity so long as all attendees are fully vaccinated, consistent with all applicable federal and state laws and regulations.

Next Steps

While on paper the state’s new guidance is a welcome reprieve for vaccinated individuals, the guidance also contains inconsistencies, and conflicts with both previous and anticipated new rules from the state that apply to businesses.  Employers are strongly encouraged to consult with counsel (i) regarding their nuanced compliance obligations under the new guidance; and (ii) regarding their forthcoming obligations under the NY HERO Act, which will impose new minimum safety standards for most businesses in New York and establish New York State Department of Labor templates for workplace safety plans by or before June 4, 2021.