New York Updates Its Model HERO Act Plan Regarding Face Covering Requirements

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On September 23, 2021, the New York State Department of Labor updated its requirements for face coverings contained in its model airborne infectious disease exposure prevention plan.  The update requires immediate review and possible revision of plans adopted pursuant to the New York Health and Essential Rights (“HERO”) Act

The key change in the revised model plan is the loosening of the face-covering requirements for employees in workplaces where all individuals on the premises are vaccinated.  In that circumstance, face coverings are apparently no longer required, but only recommended.  The prior model required facemasks to be worn throughout the workday “to the greatest extent possible” and did not permit vaccinated employees to be distinguished from unvaccinated employees.

The updated model plan now provides:

Face Coverings: 

1. [APPLICABLE FOR MOST WORKPLACES] Employees will wear appropriate face coverings in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.

2. [APPLICABLE FOR WORKPLACES where all individuals on premises, including but not limited to employees, are fully vaccinated – defined as having completed a federally authorized or approved vaccination series for an airborne infectious disease designated as a highly contagious communicable disease that presents a serious risk of harm to the public health (as is currently the case for COVID-19, pursuant to the Commissioner of Health’s designation)] Appropriate face coverings are recommended, but not required, consistent with State Department of Health and the Centers for Disease Control and Prevention applicable guidance, as of September 16, 2021.

The state also removed from the paragraph regarding “Physical Distancing” the following sentence: “use a face covering when physical distance cannot be maintained.”  Note, the state did not update its NY Hero Act Airborne Infectious Disease Exposure Prevention Standard to reflect the changes in its model plan.

The state issued NY HERO Act Information and FAQs on September 9, 2021.  As of the date of this publication, the state had not updated its FAQs to address the implications of the change in the face covering requirements. Consider, for example, an employer that has a mandatory vaccination policy but provided an accommodation to an individual for religious or medical reasons.  In that case, is it a mixed workplace requiring face coverings for all vaccinated and unvaccinated?  Many more questions have been raised by these changes.

As reminder, employers are required to train their employees on several topics set forth in the Model NY HERO Act Plan. Employers are encouraged to consult with counsel to work through questions that may arise, review and update existing prevention plans, develop training strategies, and stay apprised of the continually changing legal landscape regarding COVID-19.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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