On February 9, 2022, New York Governor Kathy Hochul announced that she would let the lapse on its Thursday, February 10, 2022 expiration date. The Governor’s lifting of the statewide rule, which required businesses to either require proof of vaccination or universal masking indoors, does not yet include an end to mandatory masking in schools, despite a slew of action to that effect in neighboring states, including New Jersey, Connecticut, and Massachusetts. California is also allowing statewide masking requirements for businesses and many other indoor public spaces to expire on February 15, 2022.

Even though the mask mandate is lifted for most New York businesses, masks are still required at state-regulated health care settings, state-regulated adult care facilities and nursing homes, transportation methods and their stations (e.g., buses and bus terminals, planes and airports, etc.), correctional facilities, homeless shelters, and domestic violence shelters, as well as at schools and childcare centers. During her remarks, Governor Hochul stated that the mask requirement for schools would be reevaluated in early March.

Businesses are permitted to continue requiring masks, and both the New York State Department of Health (“NYSDOH”) and the New York City Department of Health and Mental Hygiene (“NYCDOH”) strongly recommend masks in all public indoor settings, even though no longer required. Although the state’s mask mandate is no longer in effect, businesses may be required to enforce workplace mask requirements under laws such as the New York HERO Act. The NY HERO Act’s model plan was amended on February 9, 2022 to reflect the change in statewide policy, noting that, effective February 10, 2022, “[e]mployees will wear appropriate face coverings in accordance with guidance” from the NYSDOH or the Centers for Disease Control and Prevention (“CDC”). The new HERO Act plan also provides that, “[c]onsistent with the guidance from the State Department of Health, if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended, but not required.” Further, unvaccinated individuals, including those with reasonable accommodations (i.e., medical exemptions), are advised to wear masks in accordance with CDC guidance. The CDC also still recommends that “[i]f you are 2 years or older and are not up to date with your COVID-19 vaccines, wear a mask indoors in public.”

We will continue to monitor developments as changes take effect.

*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

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