ALBANY — New York’s indoor mask-or-vaccine mandate governing businesses is expected to expire on Thursday and not be renewed, although the regulation that is being used to enforce masking in schools for children and employees is poised to remain in place beyond February.
gov. Kathy Hochul said she expects to make an announcement Wednesday regarding the mandates, which have stoked controversy and constitutional challenges. Her office declined to say whether the governor will continue to impose the guidance impacting school children.
If she continues to keep the schools mask mandates in place, it would remain in effect as governors in neighboring states of New Jersey, Pennsylvania and Connecticut have announced they are ending their versions of the statewide masking requirements for schools.
Jill Montag, a spokeswoman for the New York Department of Health, said that the regulation that the mask mandate governing schools is based on is scheduled to expire Feb. 21 “but is expected to be renewed.”
The initial regulation was set to a 90-day window. It is unclear if it were to be renewed whether that would mean it would be continued for another 90 days.
“Let’s get more children vaccinated so they have that suit of armor they need to be protected,” Hochul said during a news conference on storm recovery in Ulster County. “I am optimistic that we’re trending in that direction, but I still need the time.”
Hochul’s administration is facing several legal challenges over whether the mandates she has imposed — without legislative authority — are legal, and both the business and education sectors have questioned the lack of details on the metrics that the state is using to decide whether to continue or end the decrees.
The New York State Council of School Superintendents, in a letter to state health commissioner Mary T. Bassett that was released Monday, commended the administration for its “straightforward communications” but said that the mandatory universal masking is a “major outstanding concern.”
“The critical issue with mandatory masking in schools at this moment is the urgent need for school leaders and parents to know the plan moving forward with concrete assurances from the state,” reads the letter from Phyllis S. Harrington, president of the Council of School Superintendents, and Charles S. Dedrick, the council’s executive director. “School leaders, students, teachers, and caregivers have been put through a whirlwind of uncertainty when it comes to masking.”
The school council leaders said that parents and others are beginning to fear that the mask mandates will “continue in perpetuity” because the state has failed to “provide reasonable, understandable, and achievable metrics based on recommendations from medical professionals for when masking rules will eventually be changed.”
The letter also noted the confusion that erupted after a state Supreme Court justice on Long Island ruled last month that the Hochul administration’s mask mandates — which were not authorized by the Legislature — are unconstitutional.
In addition, attorneys in at least two cases challenging the mask mandates — in cases filed on behalf of the parents of school children — have noted that the state attorney general’s office had argued in a related federal case defending New York’s vaccine mandates for health care workers that masks are “ineffective” at containing the spread of COVID-19.
Hochul’s pending decisions on whether to end mask mandates for schools and businesses in New York comes after Pennsylvania Gov. Tom Wolf ended his state’s school mask mandate last month; New Jersey Gov. Phil Murphy announced Monday that school masks mandates there will end in March; and Connecticut Gov. Ned Lamont on Monday said that as of Feb. 28, school districts in that state will decide on their own whether to continue having students and employees wear masks.
“We’re giving a lot of discretion to our principals and our superintendents … with some pretty strong guidance,” Lamont said. “What we’ve got to figure out is how we, as a society, … learn to live with COVID.”
Beginning in March 2020, New York and other Northeast states sought to align their COVID-19 policies and restrictions. That month, then-Gov. Andrew M. Cuomo and the governors in those neighboring states ordered all “non-essential” businesses to close.
The following month, Cuomo and the governors of the five Northeastern states — Delaware and Rhode Island had joined the partnership — announced they were forming a multi-state task force to coordinate the reopening of their economies in conjunction with efforts to control the coronavirus pandemic.
Cuomo acknowledged at the time it was a “federally declared disaster,” but he noted that President Donald J. Trump had left it to governors to determine when and how to close their businesses and schools. States also led the effort to coordinate the containment and health care responses.
The restarting of the economy, Cuomo had said nearly two years ago, would require a coordinated effort that would involve mass transportation, schools and businesses. If Hochul extends New York’s mask mandate for schools, it would signal a break in that earlier plan for the Northeastern states to coordinate their coronavirus policies.
Hochul said, in the context of mask and vaccines, that she is scheduled to have a conversation with school superintendents on Wednesday.
Vaccination rates among children ages 5 to 11 is about 30 percent for those with their complete dosage, according to state health department data. Just over two-thirds of ages 12 to 17 have completed their vaccine series. About 85 percent of people 18 and older have completed their vaccine series in New York.
“I know we can do better than that,” Hochul said. “Let’s get those younger kids vaccinated.”
The process behind how the mandates work — and how the governor’s administration could say the business measure can end on a certain date and the schools mandate would continue — on is explained by the state as two separate items.
Both mandates are based on a “regulation” that the state’s Public Health and Health Planning Council, along with the state health commissioner, approved on Nov. 24 regarding face coverings. The regulation, which expires Feb. 21, states that the health commissioner could impose requirements either on public places unable to maintain social distancing or in settings like schools, nursing homes, homeless shelters, correctional facilities and public transit.
On Sept. 2, then-Commissioner Howard A. Zucker issued guidance for a requirement to wear face masks in schools based on the regulation that is the subject of the court challenges.
Chad LaVeglia, a Nassau County attorney who filed the case in which a state Supreme Court justice ruled the mandates are unconstitutional — a ruling that is on hold pending the outcome of an appeal by the state — contends Hochul has extended the health commissioner’s power to issue “determinations” that hold the force of law over an entire state.
“These determinations are fictional. They are not rules or regulations, they are not laws (but have the force of law), they are not executive orders, and they are not subject to the safeguards of (State Administrative Procedure Act),” LaVeglia said. “It is remarkably troubling that more people don’t understand what’s at stake here. The DOH would have unbridled, absolute power to make any policy decision it wants to ‘further the public health and safety.’ They could ban masks, or ban abortions after eight weeks for example.”
A determination by Bassett had cited the regulation for its reasoning behind its indoor masking policy.
In that policy, which was extended on Jan. 31 after first launching in December amid the spread of the omicron variant, it lists not only the rules for businesses, but also schools. The business section stated it would expire Feb. 10, while the school section said the mask requirement would remain in place “until this determination is modified or respinded.”
The health department stated that while the regulation behind the school mask mandate is expected to be extended, the indoor mask mandate that is being ended is based on the same regulation.
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