On February 15, 2022, the New York State Department of Health announced that COVID-19 will continue to be designated as “a highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York Health and Essential Rights Act (“HERO Act”).

As a result, employers must continue implementation of their exposure prevention plans through March 17, 2022, subject to further extensions. For more information regarding the HERO Act, please see our prior articles: HERO Act: COVID-19 Now Requires HERO Act Plans to be  Activated; HERO Act Guidance Published by the NY Department of Labor, and Important Upcoming Employment Deadlines: NYS HERO Act and COBRA Subsidy Final Notice. 

In light of Governor Hochul’s announced end to New York’s indoor mask mandate for most businesses, New York updated its Model Airborne Infectious Disease Exposure Prevention Plan  (the “Plan”) under the HERO Act to include the following information regarding face coverings:

Effective February 10, 2022: 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. Consistent with the guidance from the State Department of Health, if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended, but not required. It is also recommended that face coverings be worn by unvaccinated individuals, including those with medical exemptions, in accordance with federal CDC guidance.

Further, the State’s masking requirements continue to be in effect for pre-K to grade 12 schools, public transit, homeless shelters, domestic violence shelters, correctional facilities, nursing homes, health care, child care, group homes, and other sensitive settings in accordance with CDC guidelines. New York State and the State Department of Health continue to strongly recommend face coverings in all public indoor settings as an added layer of protection, even when not required.

Accordingly, any employer that is no longer requiring facemasks as a condition of entry into the workplace should amend their Plan to reflect this change. Employers must also review their policies and procedures to ensure they are still operating consistent with their respective Plans. All companies should continue to monitor for, and remain vigilant in their efforts to comply with, current guidance regarding the HERO Act and COVID-19.