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On January 31, 2022, a panel of Judges in the Appellate Division, Second Judicial Department issued a Decision and Order on Motion, which stayed the enforcement of a Decision and Order that Nassau County Judge Thomas Rademaker issued on January 24, 2022.  For those following the news, the practical implication of this stay is that New Yorkers will need to continue to wear masks in certain places, pending the outcome of an appeal of Judge Rademaker’s decision.  News outlets have characterized this case as a mask vs. no-mask debate in schools, however, the Court is not actually weighing in on the necessity of masks to control the spread of COVID-19.  Rather, this case is about the role of the branches of government and when administrative agencies overstep the permissible bounds of their power.

In December of 2021, several parents of children that attend schools in Long Island, New York brought a case against the mask mandate.  At the heart of this dispute is a rule that Commissioner Mary Basset, in her capacity as the Commissioner of Health for the State of New York, enacted on December 10, 2021.  This rule – 10 NYCRR §2.60 – otherwise known as the “mask mandate” requires individuals who are over the age of 2 and able to medically tolerate a mask to cover their mouth and nose to wear one “when in a public place and unable to maintain, or when not maintaining social distance, or in certain settings . . . which may include schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings, and which may distinguish between individuals who are vaccinated against COVID-19 and those that are not vaccinated.”[1]  The Court took issue with the rule that Commissioner Basset enacted, likening it to a law.  The Court pointed out that it is the job of the Legislature and not Executive branch agencies (also known as administrative agencies) such as the Department of Health, of which Dr. Basset is a part, to enact laws.  Administrative agencies such as the Department of Health may make rules, however, that rule must provide “definition and guidance” to a law that the Legislature created.  The reason this rule came from the Commissioner of Health and not the Governor, is that the Legislature limited the Governor’s executive order powers in March of 2021, when previous Governor, Andrew Cuomo was still in office.  Following an amendment to Executive Law 29-A, the New York State legislature made its intent clear, that the Governor, whomever may occupy this position, may enact an Executive Order but that the Legislature reserves the power to terminate any Executive Order via resolution.[2]  Much of what the Governor may do under the current state of the Executive Law, is declare a “state disaster emergency.”  In the underlying case, Judge Rademaker noted that the mere existence of the Executive Order declaring an emergency is not legally sufficient for the Department of Health to create a rule that exhibits qualities of a law.  The Court also noted that the Governor did not adequately set out the grounds for declaring a “state disaster emergency” according to the State Administrative Procedure Act (“SAPA”) and that SAPA guards against broad administrative law-making by requiring administrative agencies to cite a law that the Legislature has created when making a rule.

The outcome of the mask mandate case up to this point tells us, not that masks are “bad,” or that they are not useful in fighting the transmission of COVID-19, rather, the underlying case highlights that if the Executive branch of New York State’s government wishes for there to be a mask mandate, it must go through the Legislature who may create an applicable law, following input from its elected officials, who represent the people of the State of New York.  Once the Legislature has created a law of that sort – perhaps like the current “mask mandate” – Executive branch agencies may create rules that supplement and guide the implementation of that law.

Separate from the stay that the appeals court issued, Governor Hochul has already extended the mask mandate until February 10, 2022.  The mandate with respect to schools specifically, is set to expire on February 21, 2022.  Based on the stay, coupled with the continuation of the mask mandate, this means that masks are required in public spaces and in schools, until the appeals court decides otherwise.  The parties in this case have until March 2, 2022, to file their appeals.[3]

[1] 10 NYCRR §§ 2.60(a)(1) and (2).

[2] NY CLS Exec §29-a.

[3] https://www.poughkeepsiejournal.com/story/news/local/new-york/2022/02/01/ny-mask-mandate-remain-could-extend-march-judges/9300289002/

This is not intended to be legal advise.  You should contact your attorney to discuss your specific situation.


Lauren E. Scott, Esq., is an Associate at the firm and practices general litigation.
She can be reached at 845-764-9656 and by email.

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