An appeals judge restored New York’s mask mandate Tuesday, a day after a judge in a lower court ruled that Gov. Kathy Hochul’s administration lacked the constitutional authority to order people to wear face coverings during the Covid-19 pandemic.
After hearing brief arguments, Appellate Division Justice Robert Miller granted the state’s request to keep the masking rule in place while the governor’s administration pursues an appeal.
He offered no opinion on the mandate’s legality.
The stay came after a day of confusion, in which some New York school districts — particularly in areas that lean Republican — rushed to make masks optional for students and teachers, and state education officials told administrators they should continue enforcing the mask mandate.
Attorney General Letitia James, a Democrat, said her office would continue defending the mandate in court.
“Nearly three years into the COVID-19 pandemic, we know that wearing a mask saves lives. This mandate and today’s decision are critical in helping to stop the spread of this virus and protect individuals young and old,” James said.
At issue is the legality of an order the state’s health commissioner issued in mid-December as the omicron variant fueled a huge wave of Covid-19 infections in the state.
The order required masks in schools, health care facilities, homeless shelters, jails, public transportation, and in any indoor public area where vaccination wasn’t required for entry.
As of now, the statewide mandate is only set to be in place until Feb. 1.
Ruling Monday in a case brought by a group of parents, a judge on Long Island, Thomas Rademaker said the governor and state health commissioner didn’t have authority to issue such a mandate without legislative approval.
The mandate “is a law that was promulgated and enacted unlawfully by an executive branch state agency, and therefore void and unenforceable,” the judge said.
As school districts waited for the legal questions to play out, parents received mixed instructions, depending on where they live.
In the Massapequa School District, on Long Island, administrators immediately made masking optional.
“While it is certain this decision will face legal challenges, until otherwise litigated, mask wearing will be optional for students and staff in the Massapequa Schools beginning Tuesday,” the district said on its website.
Syracuse City Schools were among those the stuck with the state guidance. “That means that anyone entering any of our schools must continue to wear a mask,” a notice on the district’s website said. New York City also stuck with its masking rule, which pre-existed the state’s order.
In Westchester County, Mamaroneck Superintendent Robert Shaps made mask-wearing optional.
Republican U.S. Rep. Elise Stefanik criticized Hochul for “ignoring” the lower court’s ruling. She told parents in her northern New York congressional district to call her office if their children were not allowed in school without a mask.
“Masks are not mandatory for students, period. Yet Kathy Hochul is still trying to force young children to wear a mask in school, shamefully disregarding the rule of law,” Stefanik said in a news release issued before the appeals court acted.
Nothing in Rademaker’s ruling had barred school districts from adopting masking rules on their own.
Arguing before Miller on Tuesday, Judith Vale, an attorney for the state, said that if Rademaker’s ruling were left it place it would endanger people’s health.
“The order, if not stayed will allow individuals to refuse to wear face coverings in indoor public settings where the risk of COVID-19 spread is high, including in schools where many children remain unvaccinated against COVID-19,” the state said in a court filing.
Attorney Chad Laveglia, who brought the challenge on behalf of a group of parents, vowed to take it “as far as it needs to go.”
“The judge got it wrong entirely,” he said of Miller’s decision to put Rademaker’s on hold until the appeals court has a chance to hear more detailed arguments.
Senate Republican Leader Rob Ortt criticized Hochul for relying on mandates and said she should instead send a bill to the Legislature for debate.
“We are two years into this pandemic, and it’s absurd that this administration is still ruling by mandates — which continue to cause confusion, frustration and division among New Yorkers,” he said.
The legal fight comes as the omicron wave that gripped New York state has been easing. The state averaged just under 22,000 new cases of the virus per day in the seven-day period that ended Monday, down from 74,600 per day during the wave’s peak in early January. Hospitalizations are dropping, too, declining 17 percent statewide in the past seven days.
New York State United Teachers President Andy Pallotta cited current public health guidance that favored masks at a time of elevated infection rates.
“In the meantime, we’re looking to state health officials to set a clear off-ramp for when mask requirements in schools can be relaxed,” Pallotta said, “so students, families and educators have some certainty that there is light at the end of this long tunnel.”