New York City children ages 2 to 4 must wear face coverings when they return to their classrooms and daycare facilities on Monday, and continue to do so until a higher court reviews a decision by a Staten Island judge to strike down the city’s mask mandate, or until the city drops it.
State Supreme Court Justice Ralph Porzio on April 1st ruled in favor of a group of parents who sued Mayor Eric Adams and city agencies in March to overturn the mask mandate, arguing that the city’s policy is “absurd” because the requirement was lifted for children 5 and older. The lawsuit also said the city does not have the authority to impose the mask mandate.
Judge Porzio agreed and issued a one-page decision saying the city’s policy was “arbitrary, capricious, and unreasonable.”
In an interview on Saturday, Michael Chessa, an attorney who represents the parents, said they were delighted Judge Porzio had agreed with them that parents should decide whether their children wear face coverings in classrooms and daycare centers. The parents were disappointed, however, that the judge’s ruling will not go into effect.
“On Monday morning when parents send their children to school, they won’t have that choice,” Chessa said.
Children 5 and older can be vaccinated. Children under 5 are not eligible to receive vaccination against COVID-19.
Lawyers for the city had immediately appealed Porzio’s decision to the higher court, the Appellate Division Second Department in Brooklyn, and asked the court to suspend Porzio’s ruling temporarily until the Appellate Court hears the city’s appeal.
The Appellate Court on April 1st granted the city’s emergency request and allowed the mask mandate for preschoolers to remain in place for now and gave Chessa until April 11th to submit papers to say why the court should lift the temporary stay.
Chessa said the Appellate Court has not set a date to hear oral arguments on the merit of the case.
“COVID-19 cases have begun to rise dramatically within the City in the past few weeks, and now is not the time for unsupported judicial intervention into public-health decision-making,” the city said in court papers.
Mayor Adams had planned to drop the mask mandate for preschoolers starting April 4th, but only if COVID-19 cases remained low. In light of rising cases, driven by an omicron subvariant, BA.2, the mayor on April 1st decided that 2- to 4-year-olds, who are too young to be vaccinated, must continue to wear face coverings while they are in classrooms and daycares.
Preliminary data suggests that the omicron subvariant, BA.2, is more infectious than other omicron subvariants, including BA.1 and B.1.1.529, which city officials said accounted for nearly all cases during the recent omicron surge.
Given that 2- to 4-year-olds are not eligible to receive vaccination against COVID-19, the number of unvaccinated individuals in daycare and preschool settings increases the risk of community spread, the city said in court papers.
Other ways to reduce the spread of COVID-19, such as social distancing and hand washing, are more difficult to enforce among children, the city said.
“Universal masking, therefore, presents one of the strongest, if not the strongest defense against COVID-19 for settings with children ages two to four,” the city said in court papers. “For these reasons, throughout the pandemic, both the City and New York State had more stringent rules in place for this setting.”