Critical Update to the New York HERO Act Allows Employers to Modify Mask Practices Based on Vaccination Status of Workforce

In previous alerts (here and here) we discussed New York State’s HERO Act (the Act) and the implementation of employer requirements after the state’s Sept. 6, 2021, designation of COVID-19 as an airborne infectious disease under the Act. Under the Act, employers are required to create and implement an Airborne Infectious Disease Exposure Prevention Plan, either by adopting the Act’s Model Plan or by creating their own plan that meets or exceeds the minimum requirements of the Model Plan. 

The state has made a critical update to the Act’s Model Plan, which now permits employers to not require face coverings if everyone in the workplace is vaccinated. The modified Model Plan has the following provisions for face coverings:

Face Coverings: When in use, face coverings must cover the nose and mouth, and fit snugly, but comfortably, against the face. The face covering itself must not create a hazard (e.g., have features could get caught in machinery or cause severe fogging of eyewear). The face coverings must be kept clean and sanitary and changed when soiled, contaminated, or damaged. 

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 Sept. 16, 2021.

Employers that permit only vaccinated individuals to enter the workplace may amend their plans to include the second option above and thereby avoid imposing a mask requirement on employees. Employers, however, are still required to conduct daily health screenings under the modified Model Plan.

For questions or concerns regarding implementation of the HERO Act, please contact a member of Kramer Levin’s Employment Law Department.