In the wake of last week’s updated guidance from the Centers for Disease Control and Prevention (CDC) easing social distancing and mask requirements for fully vaccinated people, on May 19, 2021, New York State issued its own guidance that, effective immediately, mostly adopts those new recommendations. As of May 19, most New York employers may allow individuals who have been fully vaccinated to stop wearing a mask and social distancing in their workplace.
Importantly, every business also has the discretion to continue requiring consistent rules regarding social distancing and masking, regardless of the employees’ or the patrons’ vaccination status. Alternatively, in most settings, an employer may require unvaccinated individuals to continue wearing a mask and practice socially distancing, but can now permit fully vaccinated individuals to forgo either or both of these protocols. Consistent with CDC recommendations, these new rules do not apply to public transit, pre-K-12 schools, healthcare settings, homeless shelters, correctional facilities, and nursing homes, all of which must continue to follow the State's existing COVID-19 health guidelines “until more New Yorkers are fully vaccinated.”
Employers also have the option to seek proof of vaccination or rely on self-reporting (or, as the guidance calls it, “the honor system”). Employers that wish to seek proof of vaccination can ask for a paper form, rely on the State’s Excelsior Pass, or view a digital application. Requesting proof will not be considered a medical inquiry, but if any copy of vaccination proof is obtained, it should be kept confidential and separate from employees’ personnel files. If an employer does not require proof of vaccination, it should keep in mind that the New York Department of Health “strongly recommends masks and six feet of social distancing in indoor settings where vaccination status of individuals is unknown.”
More detailed rules apply for those businesses that congregate large numbers of patrons, whether indoors or outdoors. While the State has eliminated mandated capacity limits, capacity now is restricted by the space available to maintain any required distance protocols for larger congregate settings. For example, unvaccinated individuals and those whose vaccination status is unknown generally must still maintain social distancing at gatherings that are above the State's social gathering limit of 250 people indoors or 500 outdoors. On the other end of the spectrum, businesses seeking to create fully vaccinated sections of their venue or facility -- thereby eliminating social distancing protocols and increasing capacity -- must require proof of vaccination status and cannot rely upon the honor system.
We anticipate that New York will release additional guidance for businesses on the new rules and we will promptly report on any such developments as they occur.
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