Cuomo’s Cluster Action Creates Conundrum For Church Congregations

As Albany Update has previously reported, Gov. Andrew Cuomo recently implemented a new system of COVID-19 restrictions in six specified areas of the state where the coronavirus has shown signs of surging. On October 17, 2020, the Governor outlined a new micro-cluster strategy to tackle COVID-19 hot spots that may arise in other parts of the state as well.

Pursuant to Executive Order No. 202.68, the following color-coded system of restrictions is now in effect in areas defined by the state as COVID-19 hotspots or clusters:

Yellow zones (least severe):

  • Non-essential gatherings limited to 25 attendees or less;
  • Houses of worship limited to 50% capacity and required to follow DOH guidance;
  • Restaurants and taverns must limit groups to four people; and
  • DOH to issue guidance on mandatory testing of school personnel and students.

Orange zones (moderately severe):

  • Non-essential gatherings limited to 10 attendees or less;
  • Certain specified non-essential businesses to limit in-person workforce by 100%;
  • Houses of worship limited to 33% capacity or 25 people, whichever number is lower;
  • Indoor, on-premises food and beverage service suspended at restaurants and taverns; and

Red zones (most severe):

  • No non-essential gatherings;
  • All non-essential businesses to reduce in-person workforce by 100%;
  • Houses of worship limited to 25% of capacity or 10 people; whichever number is lower;
  • On-premises food and beverage service suspended at restaurants and taverns; and
  • All schools closed for in-person instruction unless an executive order states otherwise.

While many of these new restrictions are unnecessary and draconian, one of them is confusing. The Governor’s rules for so-called “yellow zones” allow houses of worship in such zones to meet so long as they do not use more than 50% of capacity at their respective buildings. However, New York’s statewide reopening guidelines for houses of worship only allow houses of worship to meet at 33% of capacity. (On June 26, 2020, a federal judge issued a preliminary injunction allowing houses of worship to meet at 50% of capacity; however, that injunction only affected five plaintiffs.) This means that the Governor is now allowing churches in “yellow zones” to use a greater portion of their building capacity than churches in the rest of the state. To put it simply, this doesn’t make any sense. If it’s safe for churches to meet at 50% capacity in “yellow zones,” it should be safe enough for churches everywhere else in the state to meet at 50% capacity as well. Gov. Cuomo should amend his executive order by allowing houses of worship throughout New York to meet, at a minimum, at 50% capacity.