As discussed in our previous blog posts here, the New York Health and Essential Rights Act (the “NY HERO Act”) requires employers to among other things maintain, and upon designation by the NYS Commissioner of Health, implement, an “airborne infectious disease” plan that meets certain minimum standards. On September 6, Governor Kathy Hochul announced the designation of COVID-19 as an airborne infectious disease, triggering employer obligations to implement HERO Act plans and to verbally review them with employees. This designation is currently in place through September 30 but is expected to be extended.

Previously, the NY Hero Act Model Plan required that all employees “wear face coverings throughout the work day to the greatest extent possible” and follow physical distancing “as much as feasible,” while “avoiding unnecessary gatherings,” and “using a face covering when physical distancing cannot be maintained,” all without regard to vaccination status. The Model Plan (here) has now been updated as follows:

Face Coverings

In workplaces where all individuals on premises, including but not limited to employees, are fully vaccinated, face coverings are “recommended, but not required.” For all other workplaces, employees are required to wear appropriate face coverings in accordance with guidance from the State Department of Health (“DOH”) and the Centers for Disease Control and Prevention (“CDC”), that unvaccinated individuals wear a mask in indoor public places.

Physical Distancing

Physical distancing must be maintained “to the extent feasible” in accordance with guidance from the DOH and the CDC. The revised Model Plan removed prior references to “avoiding unnecessary gatherings” and “using a face covering when physical distance cannot be maintained.” Employers are still required to determine whether, in situations where prolonged close contact with other individuals is likely, additional controls beyond certain minimum controls should be implemented.

Next Steps for Employers

Employers should review their plan to ensure that it is in compliance with the requirements of the NY HERO Act and other applicable public health guidance, and may revise their plan as per the new Model Plan requirements regarding face coverings and social distancing.