An Analysis Of Gov. Kathy Hochul’s Mask Mandate

On December 10, 2021, Gov. Kathy Hochul announced new statewide COVID-19 mandates relating to masks and vaccination.

The Mandates

The mandates set forth specific requirements for health care settings, adult care facilities, schools, correctional/detention facilities, homeless shelters, and public transportation, subject to exceptions created by the Centers for Disease Control (CDC). Those requirements are:

  • In schools (prekindergarten through grade 12), all faculty, staff, students, and visitors over the age of two—regardless of vaccination status—must wear masks if they can medically tolerate them. No “mask breaks” are allowed during the school day.
  • In homeless shelters, all clients, visitors, staff, and volunteers over the age of two, regardless of vaccination status, must wear masks (if they can medically tolerate them) when social distancing is not possible. There are exceptions for eating and sleeping.
  • On public transportation (and in indoor public transportation hubs), everyone over the age of two—regardless of vaccination status—must wear masks if they can medically tolerate them.

These requirements shall remain in effect until they are changed or revoked.

The most far-reaching and controversial mandate is the mandate relating to other indoor public places. This mandate requires that “all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering/mask while in any indoor public place.” However, the mandate contains an exception; it does not apply to any indoor public place which “requires proof of vaccination as a condition of entry.” The term “indoor public place” does not include private homes; it does, however, include churches. The indoor public place mandate went into effect on December 13, 2021, and is scheduled to remain in effect until January 15, 2022.

The mandates are set forth in a December 10, 2021 document issued by Dr. Mary T. Bassett, Acting Commissioner of the New York State Department of Health. The document is entitled “Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60.” In her determination, Dr. Bassett lays out the reasoning behind the mandate, noting that since Thanksgiving, “the statewide seven-day average [COVID-19] case rate has increased by 43% and hospitalizations have increased by 29%.” The DOH was given authority to implement these mandates by a state regulation known as 10 NYCRR 2.60. The regulation provides for fines of up to $1,000 for each violation. It also states that local health officers are responsible for enforcing its provisions.

Reactions to the Mandates

While Gov. Hochul contends that most of New York’s county leaders support the new mask mandate in indoor public places, the New York Post reports that one-quarter of New York’s counties oppose it. County executives that have spoken out in opposition to the mandate include Chautauqua County Executive Paul M. Wendel Jr., Nassau County Executive-elect Bruce Blakeman, Orange County Executive Steve Neuhaus, Putnam County Executive Marc Molinaro, Rockland County Executive Ed Day, and others. Some executives have openly stated that the mandate will not be enforced in their counties.

Concerns about the mandate include the public’s weariness with COVID-19 mandates, the possibility of a backlash, the lack of any legislative involvement, and the failure to recognize that different regions have different needs. Significantly, some counties have pointed out that their health personnel are already stretched thin due to their responsibilities for vaccination, testing and contact tracing. There is concern that county health departments do not have the capacity to take on the enforcement of the Governor’s new mandate, and that efforts to do so would take away from other, more important work to combat the pandemic.

New Yorkers for Constitutional Freedoms opposes the imposition of a statewide mask mandate on indoor public places where vaccination is not required for entry. While concerns about the increase in COVID-19 infections are well-founded, we believe that guidance is preferable to top-down edicts. We also believe that the legislature—not the Department of Health or the Governor—should make decisions pertaining to statewide mandates of this nature. Also, we are dubious about the constitutionality of the mandate as it applies to churches and other houses of worship. Accordingly, we urge the Department of Health and Gov. Hochul to reconsider the mask mandates for indoor public places. Given that children and young people tend to be less susceptible to COVID-19 than adults, we also believe a mask mandate in schools to be an unnecessary overreach. Nevertheless, given the approaching holiday season and the continuing spread of the delta and omicron variants, we encourage our fellow Christians—especially those who have chosen to remain unvaccinated—to exercise due caution to avoid contracting and spreading COVID-19.