FACE MASKS: Origin and Enforcement
As New York State and the world have progressed through the COVID-19 pandemic, much has been said, written, debated and recommended when it comes to the wearing of a “Facemask or Face covering” to slow the spread of the COVID virus. The NYS Governor has issued many Executive Orders related to the wearing of face coverings, some of which are enforceable under the NYS Public Health Law and some are not enforceable under law but are deemed highly recommended.
Below are all of the executive orders and guidance on Facemasks per the Governor and New York State, everything pertaining to enforcement is highlighted in red.
Executive Order 202.16: For all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public. Businesses must provide, at their expense, such face coverings for their employees. This provision may be enforced by local governments or local law enforcement as if it were an order pursuant to section 12 or 12-b of the Public Health Law. This requirement shall be effective Wednesday, April 15 at 8 p.m.
Executive Order 202.17: Issued on April 15, 2020, provides the following directive: Effective at 8 p.m. on Friday, April 17, 2020 any individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.
Executive Order 202.18: Issued on April 16, 2020, provides the following directive: Any person utilizing public or private transportation carriers or other for-hire vehicles, who is over age two and able to medically tolerate a face covering, shall wear a mask or face covering over the nose and mouth during any such trip; any person who is operating such public or private transport, shall likewise wear a face covering or mask which covers the nose and mouth while there are any passengers in such vehicle. This directive shall take effect in the same manner as Executive Order 202.17, at 8 p.m. on Friday, April 17, 2020.
Executive Memorandum: Issued April 17, 2020, Facemask Guidance from New York State Police Deputy Superintendent: Unlike the prior business closure and social distance orders there is NO specific penalty or enforcement mechanism provided for face covering violations, and the New York State Department of Health emergency regulations do not currently require face coverings to be worn. Therefore, Police Officers have NO clear enforcement authority with respect to this order. Public Health Law 12-b cannot be charged unless DOH regulations are first amended to incorporate the face covering requirement. Likewise, there is no discernable basis within the NYS Penal Law to take enforcement action solely due to a person failing to adhere to the face covering requirement.
Executive Order 202.34: Issued May 28, 2020, Business operators and building owners, and those authorized on their behalf shall have the discretion to ensure compliance with the directive in Executive Order 202.17 (requiring any individual over age two, and able to medically tolerate a face-covering, be required to cover their nose and mouth with a mask or cloth face-covering when in a public place), including the discretion to deny admittance to individuals who fail to comply with the directive in Executive Order 202.17 or to require or compel their removal if they fail to adhere to such directive, and such owner or operator shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive. Nothing in this directive shall prohibit or limit the right of State and local enforcement authorities from imposing fines or other penalties for any violation of the directive in Executive Order 202.17. This directive shall be applied in a manner consistent with the American with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.
Absent a business owner signing a complaint for trespass should an individual not leave when asked by the business or building owner because he/she is not wearing a mask, it again appears that Law Enforcement has NO NYS Penal Law violations which can be charged and Public Health Law 12-b does not apply in this situation.
Is there a penalty for not wearing a mask in public?
No. The Governor has said there could potentially be civil penalties incurred if there is widespread non-compliance. When asked, The Governor said he does not want to go to a penalty system at this point, acknowledging the majority of citizens have complied with social distancing directives.