COVID-19 was found to be the cause of an outbreak of illness in Wuhan, Hubei Province, China in December 2019. Since then, the situation has rapidly evolved throughout the world, with many countries, including the United States, quickly progressing from the identification of travel-associated cases to person-to-person transmission among close contacts of travel-associated cases, and finally to widespread community transmission of COVID-19.

On January 30, 2020, the World Health Organization (WHO) designated the COVID-19 outbreak as a Public Health Emergency of International Concern. On a national level, the Secretary of Health and Human Services determined on January 31, 2020 that as a result of confirmed cases of COVID-19 in the United States, a public health emergency existed and had existed since January 27, 2020, nationwide. Subsequently, on March 13, 2020, former President Donald J. Trump declared a national emergency in response to COVID-19, pursuant to Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

New York State first identified cases on March 1, 2020 and has since become the national epicenter of the outbreak. On March 7, 2020, with widespread transmission rapidly increasing within certain areas of the state, Governor Andrew M. Cuomo issued an Executive Order declaring a state disaster emergency to aid in addressing the threat COVID-19 poses to the health and welfare of New York State residents and visitors. With over 600,000 deaths and over 33.5 million cases in the country, this pandemic has had a devastating effect on the United States. As part of ongoing efforts to address this pandemic, Governor Cuomo has issued Executive Orders to implement measures aimed at limiting the spread and/or mitigating the impact of COVID-19 within the state.

These regulations update previously filed emergency regulations to clarify that large-scale indoor event venues with over 5,000 attendees must ensure that their patrons who are not fully vaccinated wear face-coverings and may deny admittance to those patrons who do not comply. In light of this situation, these regulations are necessary to further implement face covering measures to control the spread of communicable disease, in situations in which the Governor has declared a state disaster emergency.

Immunizations and Communicable Diseases

A new Subpart 66-3, titled COVID-19 Emergency Regulations, is added to read as follows:

(i) Face-coverings shall include, but are not limited to, cloth masks, surgical masks, and N-95 respirators.

(ii) A person shall be considered as maintaining social distancing when keeping at least six feet distance between themselves and any other persons, other than members of such persons’ household.

A new section 2.60 is added to read as follows:

Statutory Authority:

The statutory authority for adding a new Subpart 66-3 is sections 201 and 206 of the Public Health Law. The statutory authority for adding new section 2.60 is section 225 of the Public Health Law.

Legislative Objectives:

The legislative objective of PHL § 201 includes authorizing the New York State Department of Health (“Department”) to control and promote the control of communicable diseases to reduce their spread. Likewise, the legislative objective of PHL § 206 includes authorizing the Commissioner of Health to take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department prescribed by law, including control of communicable diseases. The legislative objective of Public Health Law § 225 is, in part, to protect the public health by authorizing PHHPC, with the approval of the Commissioner, to amend the State Sanitary Code to address public health issues related to communicable disease.

Needs and Benefits:

The 2019 Coronavirus (COVID-19) is a disease that causes mild to severe respiratory symptoms, including fever, cough, and difficulty breathing. People infected with COVID-19 have had symptoms ranging from those that are mild (like a common cold) to severe pneumonia that requires medical care in a hospital and can be fatal. According to Johns Hopkins’ Coronavirus Resource Center, to date, there have been over 177 million cases and 3.8 million deaths worldwide, with a disproportionate risk of severe illness for older adults and/or those who have serious underlying medical health conditions.

COVID-19 was found to be the cause of an outbreak of illness in Wuhan, Hubei Province, China in December 2019. Since then, the situation has rapidly evolved throughout the world, with many countries, including the United States, quickly progressing from the identification of travel-associated cases to person-to-person transmission among close contacts of travel-associated cases, and finally to widespread community transmission of COVID-19.

On January 30, 2020, the World Health Organization (WHO) designated the COVID-19 outbreak as a Public Health Emergency of International Concern. On a national level, the Secretary of Health and Human Services determined on January 31, 2020 that as a result of confirmed cases of COVID-19 in the United States, a public health emergency existed and had existed since January 27, 2020, nationwide. Subsequently, on March 13, 2020, former President Donald J. Trump declared a national emergency in response to COVID-19, pursuant to Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

New York State first identified cases on March 1, 2020 and has since become the national epicenter of the outbreak. On March 7, 2020, with widespread transmission rapidly increasing within certain areas of the state, Governor Andrew M. Cuomo issued an Executive Order declaring a state disaster emergency to aid in addressing the threat COVID-19 poses to the health and welfare of New York State residents and visitors. With over 600,000 deaths and over 33.5 million cases in the country, this pandemic has had a devastating effect on the United States.

As part of ongoing efforts to address this pandemic, Governor Cuomo has issued Executive Orders to implement measures aimed at limiting the spread and/or mitigating the impact of COVID-19 within the state.

These regulations update previously filed emergency regulations to provide that large-scale indoor event venues that can accommodate over 5,000 attendees must ensure that their patrons who are not fully vaccinated wear face-coverings and may deny admittance to those patrons who do not comply.

These regulations are necessary to further implement measures to control the spread of communicable disease, in situations in which the Governor has declared a state disaster emergency.

Costs:

Costs to Regulated Parties:

The purpose of this regulation is to codify certain provisions regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders. Accordingly, compliance with this regulation does not impose any additional costs to regulated parties.

Costs to Local and State Governments:

State and local government are authorized to enforce civil and criminal penalties related to the violation of these regulations, and there may be some cost of enforcement, however such costs are anticipated to be minimal as these provisions continue existing enforcement requirements.

Paperwork:

This regulation imposes no additional paperwork.

Local Government Mandates:

This regulation imposes no additional local mandates beyond what has already been required pursuant to Executive Orders.

Duplication:

The purpose of this regulation is to codify certain provision regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders. There is no duplication of federal law.

Alternatives:

The alternative would be to not codify provisions of Executive Orders into the Department’s regulations. However, this alternative was rejected, as the Department believes that codification will facilitate increased awareness and enforcement.

Federal Standards:

States and local governments have primary authority for controlling disease within their respective jurisdictions. Accordingly, there are no federal statutes or regulations that apply to disease control within NYS.

Compliance Schedule:

The regulations will become effective upon filing with the Department of State.

Effect of Rule:

As part of ongoing efforts to address the COVID-19 pandemic, Governor Cuomo has issued Executive Orders to implement measures aimed at limiting the spread and/or mitigating the impact of COVID-19 within the state, that have a significant impact on small business and local government.

The purpose of this regulation is to codify certain provisions regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders. Accordingly, compliance with this regulation does not impose any additional costs to regulated parties.

Compliance Requirements:

These regulations update previously filed emergency regulations to clarify that large-scale indoor event venues with over 5,000 attendees must ensure that their patrons who are not fully vaccinated wear face-coverings and may deny admittance to those patrons who do not comply.

Professional Services:

It is not expected that any professional services will be needed to comply with this rule.

Compliance Costs:

The purpose of this regulation is to codify certain provisions regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders. Accordingly, compliance with this regulation does not impose any additional costs to regulated parties.

Economic and Technological Feasibility:

There are no economic or technological impediments to the rule changes.

Minimizing Adverse Impact:

As the proposed regulations codify existing provisions regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders, any adverse impacts are expected to be minimal.

Small Business and Local Government Participation:

Due to the emergent nature of COVID-19, small business and local governments were not consulted.

Types and Estimated Numbers of Rural Areas:

While this rule applies uniformly throughout the state, including rural areas, for the purposes of this Rural Area Flexibility Analysis (RAFA), “rural area” means areas of the state defined by Exec. Law § 481(7) (SAPA § 102(10)). Per Exec. Law § 481(7), rural areas are defined as “counties within the state having less than two hundred thousand population, and the municipalities, individuals, institutions, communities, and programs and such other entities or resources found therein. In counties of two hundred thousand or greater population ‘rural areas’ means towns with population densities of one hundred fifty persons or less per square mile, and the villages, individuals, institutions, communities, programs and such other entities or resources as are found therein.”

The following 43 counties have a population of less than 200,000 based upon the United States Census estimated county populations for 2010:

The following counties of have population of 200,000 or greater, and towns with population densities of 150 person or fewer per square mile, based upon the United States Census estimated county populations for 2010:

Reporting, recordkeeping, and other compliance requirements; and professional services:

These regulations update previously filed emergency regulations to clarify that large-scale indoor event venues with over 5,000 attendees must ensure that their patrons who are not fully vaccinated wear face-coverings and may deny admittance to those patrons who do not comply.

Compliance Costs:

The purpose of this regulation is to codify certain provisions regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders. Accordingly, this regulation generally imposes no additional costs to regulated parties.

Economic and Technological Feasibility:

There are no economic or technological impediments to the rule changes.

Minimizing Adverse Impact:

As the proposed regulations codify existing provisions regarding face coverings that have been issued by Governor Andrew M. Cuomo through several Executive Orders, any adverse impacts are expected to be minimal.

Rural Area Participation:

Due to the emergent nature of COVID-19, parties representing rural areas were not consulted.

The Department of Health has determined that this regulatory change is necessary to prevent further complete closure of the businesses impacted, and therefore, while there may be lost revenue for many businesses, the public health impacts of continued spread of COVID-19 are much greater.