As per our previous Client Alert, the NY HERO Act required all employers to implement and distribute a Prevention Plan that would apply to future infectious disease outbreaks, and then on September 6, 2021, NY Governor Hochul announced that the requirements of the HERO Act would now apply to COVID-19. As a result of that announcement, all employers were required to implement at least the minimum controls set out in the state’s model Prevention Plan, which included that all employees would need to again wear masks when unable to maintain 6 feet of distance, and made no distinction between vaccinated and unvaccinated employees.
Yesterday evening, with no fanfare, the state posted updated versions of the model Prevention Plan applicable to most workplaces along with updated industry-specific model Prevention Plans that now address the issue of masks for vaccinated employees.
Now, for businesses where both employees and customers or other visitors on your premises are all fully vaccinated, meaning all have completed a federally authorized or approved vaccination series, masks are no longer required – just recommended. If your business falls into this category, you no longer need to require your employees to wear masks.
It is unclear, but also possible, that for businesses where there may be unvaccinated people on premises, it is only those unvaccinated individuals that need to wear masks, and only indoors, unless there is a specific mask mandate in place from the NYS Department of Health for the business. The wording in the updated model Prevention Plans is ambiguous in this regard so we are awaiting further guidance on this issue.
Lastly, all businesses now need to complete and distribute the updated version of the Prevention Plan, noting which of the face covering provisions apply to the business under II.A.4., found at the top of page 3 (for example, by highlighting the appropriate paragraph). The updated model Prevention Plans can be found here:
As a reminder, employers must provide training to their employees regarding their HERO Act Prevention Plan – if your business will be affected by the changes above and has already provided that training, we recommend advising employees verbally and in writing of the change in the mask requirements.
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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
