Monday Briefing - May 17, 2021

Update on Mask and CDC Guidance - May 20, 2021

Executive Order 202.108

The directive contained in Executive Order 202.17, as extended and modified by Executive Order 202.105, that required any individual over the age of two to cover their nose or mouth with a mask or cloth face-covering when in a public place, is hereby extended and modified only insofar as to no longer require, effective May 19, 2021, individuals who are fully vaccinated to cover their noses or mouths with a mask or cloth face-covering while indoors except in certain settings as prescribed in Department of Health guidance, which aligns with guidance published by the Centers for Disease Control and Prevention (CDC).

Source: Executive Order 202.108

CDC Guidance Update

On May 16, 2021 the CDC updated their web page to read:

Choosing Safer Activities

• If you are fully vaccinated, you can resume activities that you did prior to the pandemic.
• Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
• If you haven’t been vaccinated yet, find a vaccine.

Source: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html (as of 2021.05.20)

Reopening New York Guidance

New York State has released a Guidance Summary that can be found by visiting https://www.governor.ny.gov/sites/default/files/2021-05/NYS_CDCGuidance_Summary.pdf

Libraries were generally considered "offices" in the phased reopening and this summary applies to those settings.

HR Works Guidance: NY Adopts CDC's Mask Guidance for Fully Vaccinated Individuals

NY Adopts CDC's Mask Guidance for Fully Vaccinated Individuals

Governor Cuomo recently announced that New York is adopting the CDC’s guidance for fully vaccinated people on wearing masks in most indoor settings. The state’s adoption of this guidance goes into effect as of today, Wednesday, May 19 via Executive Order 202.108. Masks are still required on public transit, in nursing homes, in homeless shelters, correctional facilities, schools and healthcare facilities across the state in accordance with the new CDC guidelines.

Below are some common questions we have been asked by employers:

(1) Can we still require masks in the workplace regardless of vaccination status?

Yes; businesses have the option to still require all individuals to wear masks in indoor settings. Maintaining a workplace mask mandate may present the lowest risk.

(2) If we want to follow this updated guidance do, we need to determine who has been vaccinated and how do we make this determination?

If businesses are implementing the CDC guidance, they may require proof of full vaccination status through paper form, digital application, or the State's Excelsior Pass. Alternatively, such businesses may rely upon self-reporting of vaccination status (e.g., honor system).

Requesting proof of vaccination

Simply asking vaccination status/proof of vaccination is likely not a disability-related question. However, if an employee says “no” they’re not vaccinated, do not inquire as to “why” as that would become a disability-related question.

Employers who opt to track vaccination status should consider documenting only whether the employee showed proof of vaccination or not, without tracking the type of vaccine employees received or other information. Additionally, limit access to vaccine information and comply with applicable privacy laws. Such documentation should be treated as confidential and kept separate from the employee’s personnel file.

If an employee “refuses to answer, you’ll likely have to proceed under the assumption that they are not vaccinated.

Honor System

Should employers decide not to inquire about vaccination status, the DOH strongly recommends masks in indoor settings where vaccination status of individuals is unknown.

(3) Does NY Forward guidance still apply?

The state has been gradually easing some of the requirements under NY Forward, such as capacity limits. This most recent announcement will mean that most employers will not be required to ensure masking indoors where six feet distance cannot be maintained for fully vaccinated employees. However, other parts of the NY Forward requirement will still require adherence until a formal announcement has been made to state otherwise; this includes daily health screening requirements. Additionally, we are unsure, at this time, what other requirements will be mandated as part of the recently passed HERO Act.

(4) What else do we need to consider?

Updating Your Policy and Setting Expectations

Changes in your policy about mask requirements should be clearly communicated to employees and be provided in writing. The decision to allow fully vaccinated individuals to unmask may lead to assumptions about vaccination status of others, as individuals may believe that they can discern the vaccinated from the unvaccinated. This may raise potential privacy concerns and may increase the likelihood of potential conflicts or confrontations in the workplace. As a result, employers should articulate in their written policy and verbal communications very clearly to employees that no assumptions should be made about an individual’s vaccination status based on whether they are masked or unmasked. Fully vaccinated individuals may choose to continue to wear a mask for various reasons (i.e., comfort level, unvaccinated children at home, they or a family member may be immunocompromised, etc.).

Employers who decide to continue asking all employees to remain masked should ensure reiteration of their existing policy, including why they are deciding to continue this policy.

Interplay with OSHA Guidance

OSHA has not amended its January 29 guidance directing employers not to distinguish between workers who are vaccinated and those who are not, but the agency’s website has been updated to specifically direct employers to refer to CDC guidance on measures appropriate to protect fully vaccinated workers. Where a face covering is considered required PPE (i.e., surgical masks or respirators) for certain industries under OSHA regulations, employers should adhere to federal law. Additional information on OSHA’s face covering guidance including what types of face coverings are considered PPE may be found here. Additionally, we are unsure, at this time, what other requirements will be mandated if OSHA issues their much-anticipated Emergency Temporary Standards (ETS).

Consult with Legal Counsel

These choices carry different levels of risk and decisions about how to move forward may be very specific to the nature of your business. It would be recommended that you consult with your legal counsel for additional guidance.

State Mask Mandate Ends Wednesday, May 19, 2021

According to Governor Cuomo's press conference this morning, New York State will adopt the CDC's new mask and social distancing guidance for vaccinated people starting this Wednesday.

• Per CDC, immunocompromised and unvaccinated people should continue to wear a mask and social distance.
• Consistent with CDC, masks are still required on public transportation, in nursing homes, homeless shelters, correctional facilities, schools, health care facilities.

Information from https://coronavirus.health.ny.gov/home -

• Beginning May 19, New York State will adopt the CDC’s “Interim Public Health Recommendations for Fully Vaccinated People” for most business and public settings.
  • Update that fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance
  • Update that fully vaccinated people can refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter
• Effective May 19, most business capacities—which are currently based upon percentage of maximum occupancy—will be removed. Businesses will only be limited by the space available for patrons or parties of patrons to maintain the required social distance of 6 feet. Find more information on the easing of pandemic restrictions.
• The COVID-19 Vaccine Tracker Dashboard updates New Yorkers on the distribution of the vaccine including the number of doses received by the State, a breakdown of first or second doses, and the number of persons vaccinated with the first and second doses in each region.
• In accordance with the CDC’s new guidance on mask use, fully vaccinated people no longer need to wear masks outdoors, except in certain crowded settings and venues. Find detailed guidance on mask use.

Mask Impacts on Libraries

Can we set our own policies contrary to this updated information?

Probably. This updated guidance has come quickly and there is bound to be a great deal of confusion among the general public as well as patrons. The key to this guidance is that only vaccinated individuals are allowed to discontinue masks. While there will most likely be more information to come, it seems that according to the CDC as well as Governor Cuomo's comments, individual businesses may also set their own guidelines for their customers.

How do we know if people have been vaccinated?

Certain venues are investigating the requirement of a vaccination card (received when you received your vaccination) or using the NY Excelsior Pass (available on iPhone and Android) review prior to entering. This so new, there hasn't been a model for us to follow at this point. However, it is certainly something to consider and I will be investigating this further.

What about staff who would like to no longer wear masks?

While requiring the vaccine has not been a practice implemented in many places for a variety of reasons, it seems that a realistic practice would be to require staff to provide proof of vaccination in order to no longer wear masks while at the library. Providing this is allowable according to your policies.

Auditing the First Amendment at Your Public Library

If you remember, back in October 2019 there was "[a] loosely organized social media campaign to 'audit' government spaces and agencies for alleged First Amendment violations..." (Source: https://www.oif.ala.org/oif/?p=18859). Public Libraries were targeted all over the State and there seems to be a resurgence of this practice in some areas. To my knowledge, there have not been new instances across our four counties, however, colleagues from other Systems have claimed that a few libraries have been experiencing these "First Amendment Audits." The concentration of these instances seem to be clustered around Long Island and the surrounding counties, but we should be on alert just in case it makes it way to our System.

State Comptroller Thomas P. DiNapoli: Identity Theft Cases Surged in New York in 2020

Identity thefts in New York surged during the pandemic with more than 67,000 complaints filed statewide in 2020, which was 85 percent more than the previous year and more than four times the annual total from a decade earlier, according to a report released by New York State Comptroller Thomas P. DiNapoli .

New York State Library Reopens Today

This update has little impact on us directly, but it could be related to the recent push for libraries to reopen at the minimum number of hours effective June 1, 2021.

The New York State Museum, Library, and Archives in Albany will reopen Monday, May 17. The State Education Department's Cultural Education Center reopens to the public on Monday, May 17, with new COVID-19 protocols in place and adjusted hours.
Source: New York State's Coronavirus Updates