Appellate Division leaves school mask indoor mandate in place — for now

Masks could remain in schools and other indoor public locations until at least March 2, as a state appellate court granted a victory Monday to Gov. Kathy Hochul in a lawsuit filed by Long Island parents over her indoor mask mandate.

The ruling means the Appellate Division, Second Department in Brooklyn, likely won’t hear arguments in the case before the state's temporary mandates expire — Feb. 10 for businesses and other public spaces, and Feb. 21 for schools. The appellate division is New York’s midlevel appeals court.

The court said the mandates will stay in place until the state appeal is decided and that the state had until March 2 to file papers for its appeal.

The court didn’t indicate how soon it could ultimately decide the lawsuit, which claims Hochul’s mandate is unconstitutional because she lacked the authority to impose it.

"I commend the Appellate Division, Second Department for granting a full stay to keep our masking regulations in place for the duration of our appeal," Hochul said in a statement on Monday evening.

While the Appellate Division said the temporary stay imposed last week will remain in place through, it did not indicate how quickly it would issue a ruling in the lawsuit.

"My primary responsibility as governor is to keep New Yorkers safe. Mask regulations keep our schools and businesses safe and open, protect vulnerable New Yorkers, and are critical tools as we work to get through this winter surge," said Hochul, who can extend the mandates between now and at least March 2.

"Thanks to our efforts, including mask regulations, cases are declining and we are seeing major progress in the fight against COVID-19."

An attorney for the parents criticized the court's decision.

"A panel of four judges disregarded the law and extended a stay because it was the easy thing to do," Hauppauge-based attorney Chad LaVeglia said. "We won on the law. But today's ruling is just another roadblock on the path to getting our freedom back, as both parents and New Yorkers. We will overcome this obstacle, just like every other one before it.

The Long Island parents who sued the state contended the masking mandate was unconstitutional since Hochul does not have the authority to issue such orders — they must go through the State Legislature, the lawsuit stated. A judge in Nassau County ruled for the parents last week, meaning students — for a day at least — could go to some schools maskless.

But that decision was "stayed," or temporarily suspended, by the appellate court, which on Monday extended the stay.

Meanwhile, a new "stealth" variant of the omicron variant is spreading rapidly around some parts of the world and is already in the United States, but hopefully will not throw off Long Island and New York’s recovery from the latest COVID-19 surge, medical experts said Monday.

The BA.2 variant, which is believed to be even more contagious than the original omicron variant, is spreading rapidly in parts of Northern Europe, including Denmark and Norway, and three cases have been registered in Texas, said Dr. Bruce Farber, chief of public health and epidemiology for Northwell Health.

BA.2 so far does not appear to be more virulent or severe in the sickness it causes than the original omicron, and Long Island continues to be on a good trajectory to return to more normal living conditions by the end of February, barring new developments, he said.

"I would urge people not to panic over this," Farber said. "If our trajectory continues the way it is, it will just be a number of weeks" until life gets back to a fairly normal pattern, including the possibility of not needing masks indoors in public places.

Other experts said much remains unknown about BA.2, and it might slow down Long Island’s recovery from omicron, but not derail it.

"It could stall progress as it arrives, but probably wouldn’t cause a second, new wave," said Sean Clouston, an associate professor of public health at Stony Brook University. "My guess is it would just slow down our trajectory into the spring."

While Long Island is headed in a good direction, he doubts conditions will be optimal by the end of February. He thinks it will be more like April or May when the weather turns warm — similar to the pattern last year.

He expects the sharp declines Long Island has seen in COVID-19 levels the last few weeks to slow.

"My guess is people will start to do things more normally again as the numbers come down, and then they’ll stop coming down," he said.

The BA.2 variant is called "stealth" because it appears to be able to evade some tests for COVID-19. Farber said the tests used by Northwell can detect the variant.

'Life will get back to normal'

Farber and other medical experts cautioned that COVID-19 is never completely going away. It will remain present or "endemic" at some level for years, if not decades — with outbreaks possible at any time.

Endemic means that the disease is still present, but is not causing major disruptions to daily life, killing large numbers of people or overwhelming hospitals with cases — something like the situation with the flu, experts said.

"I think life will get back to normal, with the understanding this is in the background, but should not cripple us and require us to dramatically change our lifestyles," Farber said.

Yet, other more deadly variants that do not respond to the current vaccines could emerge, though it is impossible to say if they will, he said. "I think we’d be very naive to think that new variants won’t come about with a virus that is totally out of control in large numbers of the world’s population."

Especially worrisome is that major countries, including China, Russia and India, have not yet gone through the omicron surge, and it is difficult to predict what the repercussions could be when that happens, he said.

"The idea we can just act as though we are done or everything is fine now, we don’t ever have to think about this again, is probably an incorrect vision of the future," Clouston said.

Dr. Alan M. Bulbin, director of infectious disease at Catholic Health St. Francis Hospital & Heart Center in Roslyn, said adding to the uncertainty is that much of the world’s population remains unvaccinated — leaving COVID-19 free to keep infecting and mutating.

"The big question" is "will there be a completely different variant of concern that pops up because of the lack of global vaccination?" he said.

Many countries in the Southern Hemisphere "still are ripe for selection of a new variant."

COVID-19 indicators continued to drop in test results Sunday, but at a slower rate than earlier this month.

Long Island’s seven-day average for positivity fell to 7.87%. The number of new cases was 177 in Nassau and 210 in Suffolk, though far fewer people were tested than in recent weeks — possibly due to this past weekend's blizzard.

Across the state, 87 people, including 10 in Nassau and four in Suffolk, died on Sunday of causes linked to COVID-19.

With Yancey Roy

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