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  • Ryan T. Biesenbach

NY Mask Mandate Remains in Force, For Now

On Tuesday, January 25, 2022, the Honorable Robert J. Miller, Associate Justice with New York’s Appellate Division, Second Department, granted the State’s request for a stay, restoring the mandate that requires businesses and venues to have a mask requirement ensuring all patrons over two (2) years old wear a face covering in public if social distancing is not possible and proof of vaccination is not required upon entry. This means the mask mandate will stay in effect until the Appellate Court takes further action.


By means of background, on December 10, 2021, the State Department of Health (“DOH”) announced the mandate, effective December 13, 2021. The mandate was originally intended to remain in effect until January 15, 2022, but was extended through February 1, 2022. Notably, the mandate applies to many types of entities across the state, including public transit, homeless shelters, nursing homes/healthcare settings, correctional facilities, and notably, schools. The ensuing lawsuit, Michael Demetriou v. New York State Department of Health, et al., was filed on December 24, 2021, seeks to represent all minor school children in the State and contends that the mandate was improperly issued by the DOH instead of the Legislature in violation of individuals’ constitutional rights.


The Appellate Court Stay reinstates the state’s mask mandate just a day after a lower court blocked the measure. In Monday’s Order, Judge Thomas Rademaker found that the mandate was unlawfully implemented by state Health Commissioner, Dr. Mary T. Bassett, holding that she exceeded her authority in issuing the requirement because it was not tied to any measure adopted by the New York Legislature. The measure was also promulgated without “any substantive justification” for the emergency adoption as required by State administrative law, according to Judge Rademaker. “Surely the commissioner has the authority to implement and apply rules concerning public health,” the Judge said, “[h]owever, nowhere in the public health law is the commissioner bestowed with the authority to make a law.”


The State filed a notice of appeal and the motion to stay early Tuesday. The State argued that, without a stay, Judge Rademaker’s Order will impede the widespread adoption of a “highly effective method of preventing COVID-19 transmission and thus reducing the spread of the virus.” The State also argued that the “Supreme Court missed the mark in asserting that DOH, the Commissioner, and the Council lacked the requisite statutory authority because the Legislature had not issued a statute specifically delegating the authority to issue regulations regarding face-covering requirements during the COVID-19 pandemic.” Ultimately, the State contends that Judge Rademaker was wrong not only in his application of the law, but in his analysis of the status of the pandemic and the continuing need for “widespread adoption of this important health measure.”


If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865.


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