NY HERO Act Update: DOL Publishes Revised Model Protocol, Clarifies that Fully-Vaccinated Workforces Need Not Mask

Seyfarth Shaw LLP

The New York Department of Labor published a revised Model Airborne Infectious Disease Exposure Prevention Plan, which provides that workforces that are fully vaccinated need not mask under the HERO Act. 

As previously reported, New York State’s health commissioner has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, requiring employers to activate their safety plans under the NY HERO Act.  The designation remains in effect until September 30 unless extended further.

That announcement triggered employers’ obligation to activate their respective Disease Exposure Prevention Plan.  Since then, many employers have grappled with whether and how to implement the masking protocol set forth in the DOL’s model plans.  Until today, the model stated that masking is required for all employees only when distancing cannot be maintained, irrespective of vaccination status. 

The DOL has now published a revised Model Plan that attempts to clarify when masks are required.  Specifically, the revised plan provides for two relevant circumstances:

  • For Workplaces Where All Individuals on Premises are Fully Vaccinated: Mask are recommended but not required. 
  • For All Other Workplaces: Employees must wear appropriate face coverings “in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”

With respect to the second scenario, the CDC (according to guidance last updated on August 12, 2021) recommends that anyone who is not fully vaccinated “wear a mask in indoor public places.”

The DOL’s clarification appears to recognize, as many employers had urged or expected, that masks are not mandatory where the workers on-site are fully vaccinated.  It also reinforces the DOL’s directive that masking is required where not all individuals on premises are fully vaccinated, irrespective of any individual employee’s vaccination status. 

The prior version of the model plan stated that masking is required only when proper distancing cannot be maintained, but the current version deletes this language.  But the DOL did not simultaneously revise its Emergency Regulation, which continues to provide that masking is unnecessary when proper distancing can be maintained.  Until and unless the DOL revises the Emergency Regulation, an employer can likely rely on the new guidance to permit employees to go unmasked when distancing is possible. 

Seyfarth will continue to monitor developments in this space and provide updates when available.

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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