Governor Cuomo issued Executive Order 202.34 on Friday, authorizing businesses to deny entry to individuals not wearing masks or face coverings. This post will briefly explain the background of this proclamation and what it means for New Yorkers.
After some last-minute confusion brought on by a comment made by the Governor on Thursday, Central New York along with several other regions of the state have entered Phase 2 of the New York Forward reopening plan. This means that additional retail stores, office workers, and other Phase 2-approved businesses will be back open this week.
Customers have been required to wear some sort of cloth face coverings when going out in public since April 15 as a result of E.O. 202.17, and have been subject to fines up to $2,000 for a first offense, as if pursuant to Public Health Law §§ or 12-b. The law includes a qualification that it “shall be applied in a manner consistent with the American with Disabilities Act” and certain other disability protection laws. But as anyone whose been out in public in recent weeks can probably attest, public observance of this rule has been less than uniform. To buttress the State’s rule, as a form of organic public awareness campaign, and to protect the safety of their staffs and customers, many essential businesses have adopted official store or company policies of requiring members of the public entering their facilities to wear face coverings. Oftentimes even refusing service to recalcitrants. In some unfortunate circumstances, business owners have faced confrontations with members of the public who didn’t know or care to abide by the requirement.
Executive Order 202.34
In an effort to support these businesses and the many who will be confronting this situation for the first time in the coming days, the Governor formally authorized business to deny entry to those refusing to comply with, or ignorant of the requirement to wear masks in public. “We’re giving the store owners the right to say, ‘If you’re not wearing a mask, you can’t come in’” the governor said at his daily briefing Friday.
Since it seemed that businesses had the ability to institute such a policy before E.O. 202.34, many wondered what purpose it served. James Nash, a spokesman for the National Governors Association said that they “are not aware of any other governor to have taken a similar action.” One purpose of the order was likely just to provide additional clarity to business owners who would be having to defend and enforce this policy with the shopping public. The Governor’s office explained that the authorization had prior thereto not been made explicit under the law. The hopes are that E.O. 202.34 will reduce the likelihood of conflict between business owners and the public.
It also could be to provide legal cover to businesses in the event that someone tried to claim some cause of action against a business owner for refusing to serve them. Refusing service to a patron can get a business owner in some very serious legal trouble if found to have been the result of a customer’s status in a protected class such as race or sex. Even if it was not the case that the refusal was based on bad motive, proving it was not to the satisfaction of a court can be expensive and terrible publicity. E.O. 202.34 should alleviate some worries businesses might have over denying service to individual customers to enforce the face-covering requirement. However, E.O. is 202.34 does not supersede “American with Disabilities Act or any provision of either New York State or New York City Human Rights Law,” so business owners must remain vigilant of their obligations to provide reasonable accommodations and others under those laws.
We are closely monitoring all NY Forward guidance and will continue to keep you updated. Please do not hesitate to contact the Wladis Law Firm. We will do our best to provide you with updates and will be available to answer questions as circumstances change. We may be reached at (315) 445-1700 or by e-mailing your everyday firm contacts.
Christopher J. Baiamonte
Mr. Baiamonte concentrates his practice primarily on civil litigation. He counsels individual, corporate, and municipal clients on resolving disputes ranging from environmental liability to shareholders rights to creditor–debtor suits. He also works with clients to navigate various state and federal regulations relating to areas such as environmental protection, employment, and civil rights.