Employers across New York State, including office and manufacturing businesses, retailers and gyms/clubs, grappled late during the week of May 17, 2021 with the State’s adoption of the Centers for Disease Control’s (“CDC”) interim public health recommendations for fully vaccinated people. The CDC recommended that vaccinated people generally be permitted not to wear masks or socially distance by six feet, with notable exceptions for Pre K-12 schools, public transit, homeless shelters, correctional facilities, nursing homes and healthcare settings. Conversely, unvaccinated people in all settings must continue to wear masks and socially distance by six feet. The immediate issue presented was how to tell if employees, customers, members, etc. are vaccinated or not for purposes of applying the new law. For now, it appears most have settled on following the “honor system”, allowing people to decide on compliance with the law themselves. However, some businesses have decided to continue to require masks of employees, customers and/or members, while others have exercised their right to require proof of vaccination prior to allowing someone not to wear a mask on their premises.
Business capacity is now only limited by the space needed in order to maintain the six feet of social distance. As per the above though, vaccinated people do not need to wear a mask or socially distance by six feet, so the business capacity is not limited by vaccinated people. For purposes of business capacity, proof of vaccination status is required to be obtained. The form of proof may be the paper vaccination card or a copy, digital application or the State’s Excelsior Pass. Business capacity will therefore still be limited to the extent people fail or refuse to provide proof of vaccination.
Neither the CDC Recommendations nor the state guidance adopting them mentions or requires daily health assessments as previously required. Certainly, employers would be advised to continue to have employees who show COVID-19 symptoms to stay home and seek medical attention if need be. There is also no reason not to continue with the enhanced cleaning, hand-washing and other hygiene precautions that have been in effect during the pandemic.
As always, if you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.