As previously reported, on September 6, 2021, the New York State Commissioner of Health officially designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. This designation triggered the obligation for employers to implement their New York HERO Act plans. The initial designation was set to expire on September 30, 2021. On October 1, 2021, the New York State Commissioner of Health extended the designation until October 31, 2021.

In addition to the extension, employers should also be aware that the New York State Department of Labor recently released an updated Model Airborne Infectious Disease Exposure Prevention Plan (available here). Employers should review their New York HERO Act plans to ensure compliance with the newest model. Most notably, the updated model plan includes a clarification on face coverings, stating:

1. [APPLICABLE FOR MOST WORKPLACES] Employees will wear appropriate face coverings in accordance with guidance from New York 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 New York State Department of Health and the Centers for Disease Control and Prevention applicable guidance, as of September 16, 2021.

The updated model also removed the sentence “use a face covering when physical distance cannot be maintained” from the “Physical Distancing” portion of the plan.

Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the New York HERO Act. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.


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