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.

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