New York COVID-19 Response – NY HERO Act Designation Extended

In a Tuesday, January 25th press release, Governor Kathy Hochul announced that the daily COVID positivity rate is 9.64% and the seven-day average is 9.69%. There are 9,854 COVID hospitalizations around the State, 1,433 COVID patients in the ICU, 805 intubations, and 158 New Yorkers died from the virus on Monday, January 24th.

Around Christmas and New Year’s, the State experienced a significant, yet brief winter surge due to the Omicron variant. During the surge, new COVID cases, hospitalizations, and death greatly increased. Over the past several weeks, Governor Hochul announced various new efforts to combat the surge. Some of the new efforts included a first-in-the nation mandate requiring all healthcare workers to get the COVID-19 booster shot within two weeks of becoming eligible. Under the mandate, there is no test-out option for individuals who do not want to receive the shot, and only medical exemptions will be recognized. Governor Hochul also announced new rules for nursing home visitation, which include requiring visitors to have a negative COVID test within 24-hours of visiting, and requiring visitors to wear “surgical” type paper masks during the visit. 

After several weeks, the COVID numbers are beginning to steadily trend downward. Although Governor Hochul is optimistic about the COVID numbers, she remains cautious. “It looks like we might be cresting over the peak,” the Governor said. “Cases are slowing down. The rate is slowing down. But they are still high. We are not at the end, but I wanted to say this is, to me, a glimmer of hope. A glimmer of hope at a time we desperately need that.” Hochul also said it is still is too soon to make a determination about her indoor mask or proof of vaccine mandate, which is set to expire on February 1st. “I can’t stand here today because I don’t have the knowledge [of] what it’s going to look like Feb. 1. We’re going to keep monitoring the situation to make sure there’s not a trend that changes quickly. Under the mandate, businesses must implement a policy requiring individuals wear masks indoors or require proof of vaccination to enter.” 

On January 24th, Nassau County Supreme Court Justice Thomas Rademaker ruled that Governor Hochul’s mask mandate, which requires everyone over the age of two to wear a mask in public spaces so long as they can medically tolerate it, cannot be enforced because it violates the state constitution’s separation of powers. In his ruling, Justice Rademaker said that the mandate amounted to “a law that was promulgated and enacted unlawfully by an Executive Branch State agency, and therefore, void and unenforceable as a matter of law,” adding, “while the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature.”

In response, Nassau County Executive, Republican Bruce Blakeman, who has been a vocal critic of Governor Hochul and her various mandate, called the decision “a tremendous victory for the people of New York State, especially the school kids.” Blakeman added, “so many parents came to me and said that they didn’t feel it was healthly for their children to be forced to wear masks and they wanted to have that choice and I agree.” Governor Hochul responded saying, “my responsibility as Governor is to protect New Yorkers throughout this public health crisis, and these measures help prevent the spread of COVID-19 and save lives. We strongly disagree with this ruling, and we are pursuing every option to reverse this immediately.” On January 25th, State Attorney General Letitia James filed a motion to stay the ruling while the State files a formal appeal. Later that day, it was announced that the stay was granted, meaning the mask mandate will remain in place while the case is argued before an appellate court. 

On the federal side, the Supreme Court blocked President Biden’s vaccine-or-test mandate for large private businesses on Thursday, January 13th. The mandate, which was overseen by OSHA, required workers at businesses with 100 or more employees to get vaccinated to take weekly COVID tests. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court wrote in its opinion. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” Although the court blocked the mandate on businesses, they allowed Biden’s vaccination mandate for healthcare workers.

Finally, on Saturday, January 15th, the New York State Department of Health announced the extension of the designation of COVID-19 as a highly contagious communicable disease, which triggers the NY HERO Act, until February 15, 2022. The NY HERO Act, which was passed and signed by former Governor Cuomo earlier this year, states that when the Department of Health formally designates a virus as a “highly contagious communicable disease,” all employers must implement a plan to protect their employees from airborne infectious diseases. On February 15, the Department of Health will again review the level of COVID-19 transmission in the State and determine whether to continue the designation.