On September 23, 2021, the New York State Department of Labor (“NYSDOL”) released an update to its general model airborne infectious disease exposure prevention plan (“model plan”) for employers’ use in complying with the NY HERO Act. Specifically, the model plan’s language regarding face coverings and physical distancing was modified by:

• distinguishing between workplaces where all individuals on the premises, including, but not limited to, employees, are fully vaccinated and those workplaces where not all individuals are vaccinated in terms of whether face coverings are required or recommended, consistent with current guidance from the New York State Department of Health (“NYSDOH”) and the Centers for Disease Control and Prevention (“CDC”), and
• recommending the use of physical distancing “to the extent feasible” per guidance from NYSDOH and the CDC.

A comparison of the changes is reflected below:

These changes appear to give employers with fully vaccinated workplaces more flexibility in whether to mandate face coverings. The revised NYSDOL model plan is available here.

Employers with fully vaccinated workplaces wishing to take advantage of this flexibility likely will want to update their HERO Act safety plan to reflect the language in the new model.

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