Enforcement Guidance in COVID Zones in NY, as Executive Order Goes to Court

Pursuant to Governor Andrew Cuomo’s executive order, the New York State Department of Health has imposed new public health restrictions in areas of Brooklyn and Queens experiencing an increase in COVID-19 cases. Based on the severity of COVID-19 activity, the order divides these areas into three zones (red, orange, and yellow) with different restrictions in each zone. Members of service will use discretion in enforcing such restrictions using warnings, reminders and summonses, as appropriate, to gain compliance and remediate conduct posing a danger to public health.

Regardless of the zone, persons over the age of two must wear a face covering in public when near other people who do not reside in their household. Individuals who cannot wear a face covering based on medical conditions are exempt from this requirement. A face covering is anything that covers the nose and mouth including cloth masks, surgical masks, scarves and any other covering.

Capacity restrictions in houses of worship will be enforced in all zones. In the red zone, houses of worship are permitted to be open at 25% capacity or a maximum of 10 persons, whichever is fewer. In orange and yellow zones, houses of worship are permitted to be open at 50% capacity. If there is a violation of the capacity restrictions in a house of worship, members of service may try to remediate the situation by speaking to the leader of the house of worship and congregants to gain compliance. If members of service determine enforcement is appropriate, a c-summons may be issued to the leader of the house of worship for violating the mayoral emergency order requiring capacity restrictions in houses of worship.

In the meantime, a lawsuit was filed Thursday in federal court, asking for a temporary restraining order to bar the State from enforcing its limits on house of worship attendance in certain areas of the state.

With Shemini Atzeres and Simchas Torah beginning Friday evening, these limits would, according to just one of the points made in the lawsuit, disrupt the religious observance of tens of thousands of Orthodox Jews, “depriving them of their religious worship and holiday observance.”

The lawsuit also contends that although the caps apply to all house of worship, and thereby discriminates against all religions, the order disproportionally impacts the religious services of Orthodox Jews who cannot drive to a synagogue out of a “red zone” on Shabbos or Yom Tov.

The filing requested that the court immediately grant a temporary restraining order (TRO) preventing the state government from enforcing the new limits, as well as declaring the executive order unconstitutional.