Judge Thomas Rademaker, a New York State Supreme Court Judge in Nassau County, yesterday issued an order striking down the statewide mask mandate issued by the Department of Health in December, which requires that all state residents over the age of two wear face masks in all public places, including within all schools. Judge Rademaker found that the DOH had exceeded its authority with the order, which he equated to a “law.”

Governor Kathy Hochul reacted swiftly, publicly disagreeing with the ruling and appealing the decision. An appeals court judge granted a motion to temporarily block the earlier ruling by Judge Rademaker, putting the mandate back into effect only hours later.

As the pandemic continues, it seems the judiciary is again on a collision course with the executive branch, as the government attempts to stymie the spread of the virus.

The decision did not, on its face, criticize masks or mask rules, but invalidated the DOH order on more technical grounds. In fact, the judge took pains to state that the court was not against masks, and “prays that the era of COVID ends soon[.]”

A short background. At the start of the pandemic in 2020, the New York legislature gave former Governor Andrew Cuomo emergency powers to issue orders to regulate public behavior, and he took full advantage of that power. Through 2020 and early 2021, Governor Cuomo took full advantage of that power and issued a number of executive orders regulating the behavior of businesses and state residents, some of which came under heavy scrutiny. However, in March 2021, the state legislature suspended those emergency powers, denying Governor Hochul the ability to issue executive orders relating to the pandemic.

Judge Rademaker noted that curbing of the Governor’s authority in his decision, finding that since the state legislature had pulled back on the Governor’s power, what the Governor then did was “utilize the New York State Department of Health to issue this emergency rule” – in effect using the DOH to do what she was unable to do herself. The court then went on to find that the judge held that the Health Commissioner had exceeded her authority in issuing the mask order, finding that there was no state law which gave the Department of Health the authority to issue such a broad order. He noted that the only state law regarding COVID related to contact tracing, not face covering.

The judge analogized the DOH order to the state Department of Motor Vehicles changing speed limits at a whim, which, he opined, it did not have the authority to do. He said to allow this order to stand would permit any state law to be “changed at the whim of every new commissioner[.]”

Thus, the court held that the mask order was legally invalid.

The Governor’s reaction

Governor Hochul reacted swiftly, stating that it was her responsibility to “protect New Yorkers through this public health crisis, and these measure prevent the spread of COVID-19 and save lives.” The Attorney General filed a Notice of Appeal immediately following the decision, along with a motion to stay the lower court’s order, which was granted.

What does this mean?

On a technical level, the order does not have legal effect beyond the borders of Nassau County. It is exceedingly likely that the Attorney General will follow up the Notice of Appeal with an effort to stay the Supreme Court’s order. If the stay is granted, the mask mandate will remain in effect while the appeal is decided.

What should employers do?

Besides keeping up with the news (and this blog) no immediate action is necessary. Private employers have the ability to continue to require masks in their workplaces. Employers continue to need to be aware of mask mandates applicable to their specific industry and jurisdiction.

If your business is retail, or a similar establishment which is open to the public, you also continue to have the power to require your customers and employees to wear masks.

If in the future you want to relax the mask mandate for your business, stay tuned for further developments in this case.