NY’s Mask Mandate Is Back, But Still In Limbo: Here’s What Schools And Businesses Should Know

A legal seesaw threw Gov. Kathy Hochul's mask mandate into question this week, creating chaos at schools and businesses, as counties decided whether or not to keep abiding by the rule.

On Monday, a New York State Supreme Court judge ruled that Hochul’s mask mandate for indoor public spaces was invalid because she overstepped her authority when she put it in place in mid-December without going through the state legislature.

The state attorney general requested a stay on Tuesday to keep the mask mandate in place while the case makes its way through the appeals process. Following a hearing Tuesday afternoon, a judge ruled in favor of keeping the mandate in place for now, but it could still get thrown out again.

With the legal battle ongoing, there’s understandably some confusion about the current status of the state mask mandate and what it means for teachers, students, retail workers and others who might be affected. Some school districts such as those on Long Island immediately dropped their mandates, which a legal expert said might be a violation. Meanwhile, New York City schools kept their rules in place. And even if the mandate remains in effect, what happens when it is due to expire next month?

WNYC/Gothamist reached out to state and local authorities and groups representing different sectors to gain some clarity on the situation.

Here’s what we know so far.

How New York Got Here

Hochul initially announced the mask mandate on December 10th, saying it was a response to rising COVID-19 cases in New York. She said that all businesses and venues that didn’t have a vaccine requirement in place must mandate staff and patrons to wear masks. She added that state masking requirements remained in effect for schools, public transit and other settings. The rule was officially issued the following day via an order from State Health Commissioner Mary Bassett. It was set to expire on January 15th, but was later extended until February 1st.

The key here is Bassett, more than Hochul. According to Judge Thomas Rademaker at the State Supreme Court in Nassau County, the state legislature would have to pass a law to require masking in public spaces in order for the mandate to be legal. Rademaker’s opinion said Bassett did not have the authority to issue a public health rule affecting all businesses statewide. And he said Hochul could not issue such a mandate on her own.

That’s partially because the state legislature curbed former Gov. Andrew Cuomo’s pandemic powers in March 2021, after he issued several executive orders related to masks and other safety precautions during the pandemic. He had used emergency powers granted by the state legislature early in the crisis, allowing him to make decisions unilaterally and overrule county and city leaders.

“To be clear, this court does not intend this decision in any way to question or otherwise opine on the efficacy, need, or requirement of masks as a means or tool in dealing with the COVID-19 virus,” Judge Rademaker wrote. Rather, he said he was only ruling on whether the mandate was properly enacted and could be enforced.

This ruling is also similar to what happened when the State Supreme Court overruled Mayor Michael Bloomberg’s ban on soda and sugary drinks in 2013, said Roderick Hills, a law professor at the NYU School of Law.

“Just as that earlier opinion said that the Board of Health in New York [City] did not have authority to limit the size of containers for soft drinks, so too this opinion says there's nothing from the state legislature authorizing Bassett to force people to wear face masks,” said Hills, who specializes in governmental separations of powers.

During a hearing Tuesday afternoon at a State Appellate Court to determine whether the mandate will remain in place while it’s being contested, a lawyer for the state argued that the health department regularly issues rules to promote public health and that voiding the mandate would cause irreparable harm. But Hills said he didn’t think Bassett had the authority to require masking in private businesses.

“The public health law does not give the state commissioner any broad regulatory powers,” he said. “So, if you don't have emergency powers, you're kind of left with a gun containing no bullets.”

However, state officials pointed out that an Albany County Supreme Court judge ruled in November that Hochul and then-Health Commissioner Dr. Howard Zucker did have the authority to issue a statewide mask mandate for schools after it was challenged by two Long Island school districts.

At a press conference Tuesday afternoon, Hochul pledged to keep fighting for the current mandate in court: "We disagree 100% with the conclusion of the judge who, in his opinion, thought that the Department of Health did not have the authority to protect public health. A judge in Albany — same fact pattern — came up with the opposite conclusion. So we believe it will be settled very shortly.”

Hochul said she was bolstered by the appellate court ruling Tuesday afternoon: “We will not stop fighting to protect New Yorkers, and we are confident we will continue to prevail."

“Typically, these decisions about temporary restraining orders or stays require both a look at how harmful it would be if the judge got it wrong — and also how wrong the judge was because the law in fact was on the state's side,” he said, adding that Judge Rademaker’s legal rationale seems to be strong. “As for the harm that will be done if he got it wrong, obviously, that could be significant.”

Does Your School District Still Need To Follow Mask Mandates?

The short is answer is yes, despite the dueling opinions and war of words playing out in the news between school district leaders and state officials.

Some school districts in New York state have told parents and students that masking is optional while the governor’s rule is under review by the courts. Nassau County Executive Bruce Blakeman told the governor to “stand down” on the mask requirement and “bend to the will of the people.”

But the New York State Education Department filed an emergency order requiring masks in schools in August. The Department said in a statement Tuesday, “While these legal steps occur, it is NYSED’s position that schools should continue to follow the mask rule.”

According to Hills, the State Education Department likely can require masking in schools statewide regardless of whether the governor’s mandate is ultimately defeated or expires. “The department of education has far more authority over schools than the state health commissioner has over you and me,” Hills said.

Andy Pallotta, president of the New York State United Teachers union, said in a statement Tuesday that mask mandates in schools should remain in place as long as they are recommended by public health experts but that “we’re looking to state health officials to set a clear off-ramp for when mask requirements in schools can be relaxed so students, families and educators have some certainty that there is light at the end of this long tunnel.”

Likewise, Rademaker’s ruling has no impact on the mask requirement put in place by New York City’s public schools because its long-standing mandate draws its authority from the state Department of Education. A spokesperson for the city’s education department said its mandate would remain in place regardless of what happens with the state mandate.

Amidst the confusion, Hochul urged parents, teachers and school districts to keep following the state education department’s mask mandate to curb the spread of the highly contagious omicron variant.

“I'm encouraging parents and students to continue doing what they're doing because the last thing I want to see is a different trend because people gave up on masks," she said.

Restaurants, Bars and Other Businesses Face The Most Confusion

In New York City, the Key to NYC executive order requires bars, restaurants, gyms and entertainment venues to check the vaccination status of employees and customers.

Since the governor’s mask mandate only applies to businesses without a vaccine requirement, the outcome of this case won’t have a major impact on the protocols for these spaces, noted Andrew Rigie, executive director of the New York City Hospitality Alliance. Still, Rigie said, “all the ever-changing COVID requirements have created lots of confusion for small business owners.”

But New York City does not have a mask requirement in place for any business, just a recommendation. So, if the governor’s mandate is ultimately invalidated, that would mean supermarkets, bodegas, clothing stores and other businesses can still set their own policies around masking, but they won’t have a state mandate to back them up.

In other parts of the state, any business without vaccine requirements has more riding on the decision — and the coming days could be very confusing. Here’s a breakdown, step by step.

1. For now, all businesses outside of New York City still have to require their patrons to be masked if they’re unvaccinated following Tuesday’s appeal, which granted a stay to Monday’s decision. In other words, the state’s vaccine-or-mask requirement is back in effect.
2. This decision will likely be appealed again and go before the New York State Court of Appeals. Its ruling would be final.

“There's no federal issue here, so it can't go to the U.S. Supreme court…This is purely a matter of state law,” Hills said. “The only thing that can happen is that the state legislature in Albany, actually enact a statute authorizing the health commissioner to do what she did.”

Some businesses have safety precautions – including mask protocols – that they have agreed to put in place as part of collective bargaining agreements, said Chelsea Connor, a spokesperson for the Retail, Wholesale and Department Store Union. But she noted that the union only represents about 45,000 retail workers in New York state.

Kathryn Wylde, president and CEO of the Partnership for NYC, an organization representing businesses, said she thought that most local employers support a vaccine-or-mask policy in the workplace.

Sophia Chang, Gwynne Hogan and Nsikan Akpan contributed to reporting.