New York State lifted its mask mandate applicable to businesses on February 10, and the New York State Department of Labor subsequently issued new guidance that the New York HERO Act does not require employers to enforce mask requirements.

BACKGROUND

In December 2021, New York Governor Kathy Hochul announced a mask mandate, applicable to all businesses and venues, which required all employees and patrons to wear masks in public indoor spaces unless the business or venue only permitted fully vaccinated individuals on the premises (the Mask Mandate). The Mask Mandate went into effect on December 13, 2021, and was extended through February 10, 2022.

LIFTING OF THE MASK MANDATE

At a press conference on February 9, 2022, and in a subsequent press release, Governor Hochul announced that the Mask Mandate would be lifted effective February 10, 2022. During the press conference, Governor Hochul explained that, because of decreasing COVID-19 positivity rates and hospitalizations, the state will let cities and localities decide whether masks should be mandated. Governor Hochul stated that businesses retain the option to implement a mask requirement and make decisions based on their determination of what is best for their organizations.

New York State mask requirements will remain in effect for pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, healthcare, childcare, group homes, and other sensitive settings, as set forth in Centers for Disease Control and Prevention (CDC) guidelines.

New HERO Act Guidance

Importantly, the designation of COVID-19 as an airborne infectious disease pursuant to the New York HERO Act remains in effect through February 15, 2022 (per the latest extension issued on January 15, 2022, by the New York State Commissioner of Health). As long as the COVID-19 designation is maintained, private businesses must continue to follow written exposure prevention plans, which must address mask wearing.

The NY HERO Act Standard, which was established in August 2021, and sets the minimum standards for safety plans, provides that businesses are required to follow applicable guidance from the New York State Department of Health (which still recommends that all individuals wear masks while indoors, though this might be updated soon given Governor Hochul’s announcement) and the CDC (which states that all individuals should wear masks in areas of substantial or high risk of transmission, regardless of vaccination status, and all of New York State is currently listed as high risk).

On February 10, 2022, the New York State Department of Labor published a revised HERO Act Model Plan which provides that “if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended, but not required. It is also recommended that face coverings be worn by unvaccinated individuals, including those with medical exemptions, in accordance with federal CDC guidance.” In other words, the Department of Labor’s position is that employers do not need to require masks in their safety plans. Employers should still address mask wearing in their safety plan and may consider recommending mask wearing in accordance with CDC guidance. Employers may also want to remind employees that they are welcome to wear masks at work if they would feel more comfortable doing so. While informative, the Department of Labor’s interpretation of the HERO Act in the Model Plan is not binding, and notably, the Department of Labor has not updated the actual HERO Act Standard since it was published in August 2021.

Finally, employers should understand that although unvaccinated employees in New York City who work in person (such as those with an approved reasonable accommodation from the City’s vaccine requirements) are not technically required to still wear masks, New York City guidance strongly recommends that they do so.

NEXT STEPS

Employers should monitor whether the designation of COVID-19 as a qualifying airborne infectious disease under the HERO Act expires on February 15, 2022, or if the Commissioner of Health issues another extension. If the designation is extended, then employers should consider applicable guidance from the New York State Department of Health and CDC to determine whether to require or recommend masks unless all individuals on the premises are fully vaccinated. However, now that the Mask Mandate is no longer in effect, employers may consider preparing for the expiration of the designation. Specifically, employers should consider:

• What types of safety protocols to implement once the HERO Act requirements are removed, as employers will then have more discretion in crafting policies, including on topics such as masking, distancing, and screening
• Removing HERO Act postings and intranet pages, and revising handbooks accordingly to avoid confusion
• Continuing to monitor additional guidance from New York State and other applicable health agencies, such as the CDC and OSHA

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