Hochul extends New York’s 'mask or vax' policy amid court challenge

Gov. Kathy Hochul said Friday that she’s extending a contentious state policy that requires New Yorkers to wear face coverings in all public indoor settings — or show proof of Covid-19 vaccination — through Feb. 10.

The extension comes as a legal fight brews over the state’s mandate.

The governor, who instituted the “mask or vax” requirement as the Omicron variant began to drive a resurgence in Covid cases and hospitalizations across the state, had been undecided publicly about whether she would continue the policy, which was set to expire on Feb. 1.

“We didn't know at the time when we put in our mask or vaccine requirement to protect people as this Omicron surge was spiking ... what January and February look like," Hochul said Friday.

"We still don't know much beyond where we are right now. But again, the trend is much more positive, and that is why I want to talk about the fact that we'll have a temporary extension of our business mask or vaccine policy."

Hochul said the state will reassess the policy “every two weeks now so we can be ready to give businesses the notice they've been waiting for.”

How we got here: The statewide mask or vaccine requirement took effect in mid December — just days after the state reported its first cases of the highly contagious Omicron variant.

Under the policy, everyone age 2 and older must wear masks in indoor public settings, except at businesses or venues that mandate proof of full vaccination — or face potential civil and criminal penalties, including a maximum fine of $1,000 per incident.

Officials noted at the time that the state’s already existing mask requirements would continue to be in effect for pre-K to grade 12 schools, as well as at homeless shelters, correctional facilities, nursing homes and health care settings, in accordance with federal guidelines.

Hochul, in announcing the mask or vaccine mandate, said it came in direct response to increasing Covid cases, reduced hospital capacity and insufficient vaccination rates. And pledged to reassess the policy on Jan. 15 — a deadline which was extended through Feb. 1 as cases surged in the final days of 2021.

Enforcement challenges: But compliance with the policy — which leaves enforcement up to local health departments — has varied across the state.

While some counties were quick to endorse the mandate, signing a state form indicating their plans to enforce the rules — a move which allowed them to access millions in compliance funds — others did not.

As of Friday, 31 counties had requested $27,393,000 in reimbursement “to assist with staffing for enforcement, vaccines and testing sites, public awareness campaigns for mask-or-vaccinate requirements and protocol enforcement” — funds which have not yet been dispersed, according to Department of Health spokesperson Erin Silk.

Dutchess County Executive Marc Molinaro, a Republican who was among the local leaders who did not fully embrace the Hochul administration’s policy, said “this is simply not something that is enforceable, other than using your bully pulpit to tell people you’re going to enforce it.”

Instead, Molinaro said Dutchess County has chosen to encourage mask wearing as a way to slow viral transmission.

“This order would require the health department to send a $1,000 fine to the public library if you or I happened to walk through the door without a mask on,” he said in an interview. “That is not a practical or appropriate way to get people to do things that you’d want them to.”

New York State Association of Counties executive director Stephen Acquario said while some counties chose not to overtly enforce the mask or vaccine policy — resulting in “uneven” compliance — local officials “never stopped promoting public health.”

“There’s still a commitment by every county official, elected and appointed, to do all we can to protect the public and the community from further spread — it’s what we do and we take that job seriously,” he told POLITICO.

School mask controversy: Pressure has been swarming Gov. Kathy Hochul’s school mask mandate since the early days of her administration, when she rolled out a universal requirement for people to wear face coverings in school buildings last August.

That pressure has only ramped up in the months since.

Nassau County Executive Bruce Blakeman, a newly-elected Republican and critic of the state’s mask policy, has used his executive powers to direct local agencies to “cease enforcement of mask mandates and directives issued by the state of New York.”

His Jan. 6 executive order further directed Nassau County boards of education to vote on whether or not “parents and children should be granted the constitutional right to reject mask mandates while in the classroom.”

But the state has said the county did not have the authority to do so independently.

Some superintendents and legislators from around the state had already been urging Hochul to come up with a vision for ending the universal mask policy in certain schools, and whether it should be based on certain Covid safety metrics, like school vaccination rates.

And some school districts have directly jumped into the fray in recent weeks. The Massapequa School District became the first school district to announce that it would be making masks optional once that requirement expired on Feb. 21.

Silk noted that the Department’s health guidance for schools is distinct from the mask or vaccine determination, which is the subject of litigation.

“As the guidance is distinct from the regulation, it is and will continue to be in effect and would not be impacted by the current case,” she said in an email.

Legal challenge: Those tensions took center stage earlier this week when a Nassau County judge ruled that the state’s public indoor mask mandate violates the state constitution and is therefore not enforceable— a ruling which the Hochul administration was quick to condemn and challenge.

Nassau County State Supreme Court Judge Thomas Rademaker wrote in his six-page decision that while Hochul and Health Commissioner Mary Bassett’s intentions in announcing the policy “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” — which has the authority to issue Covid-related mandates.

Some school districts, several of which were concentrated on Long Island, then announced that masks would be optional — despite instructions from the State Education Department to “continue to follow the mask rule”.

A day later, the state successfully blocked the ruling — at least on a temporary basis — after Attorney General Tish James’ office defended the policy in appellate court.

A future court hearing is expected to determine the legal fate of the mask or vaccine policy. But the issue could essentially become moot if Hochul lets it lapse on Feb. 10.