Cases of the Omicron variant of Covid-19 are finally declining in New York State and, consequently, effective February 10, 2022, the indoor mask-or-vaccination requirement for businesses in New York State has been lifted. The requirement is still mandated in hospitals, nursing homes, shelters, public transportation and related entities. Masking is still required in public schools. Additionally, cities like New York City continue to require masking and proof of vaccination for members of the public (and employees) in certain indoor public venues like restaurants, museums, public transportation, and other public settings. The U.S. Supreme Court has also upheld the vaccination requirement for New York City's public school teachers despite legal challenges based on sincerely held religious beliefs.

UPDATED MODEL TEMPLATE

Also effective February 10, 2022, consistent with the Governor's lifting of the indoor mask mandate, the New York State Department of Labor ("NYSDOL") updated its model template for the airborne infectious disease exposure prevention control plan ("Model") for all private sector employers (nonprofits and for-profits) with a physical presence in New York State, under the New York Health and Essential Rights Act ("HERO Act").1 Specifically, the updated Model provides that if indoor areas do not have a mask or vaccine requirement as a condition of entry, the NYSDOL recommends, but does not require, face coverings. NYSDOL continues to recommend that unvaccinated individuals wear face coverings, in accordance with federal Centers for Disease Control and Prevention ("CDC") guidance.

The updated Model also notes that employees will wear appropriate face coverings in accordance with guidance from the NYS Department of Health ("NYSDOH") or the CDC. For instance, New York State continues to require face coverings/masks for those entering pre-K to grade 12 schools (over age 2), public transit, homeless shelters, domestic violence shelters, correctional facilities, nursing homes, health care, child care, group homes, airports, and other sensitive settings in accordance with CDC guidelines. New York State and the NYSDOH continue to strongly recommend face coverings in all public indoor settings, even when not required. And counties, cities and businesses may still require face coverings and/or vaccinations.

COVID-19 CONTINUES TO BE DESIGNATED AS A HIGHLY CONTAGIOUS DISEASE

On September 6, 2021, the New York State Commissioner of Health ("NYSCOH") first designated Covid-19 as a highly contagious communicable disease that presents a serious risk of harm to the public, and that designation has been extended several times, most recently until March 17, 2022, at which time the NYSCOH will review the level of transmission and decide whether to continue the designation. That designation means that employers have to keep their HERO Act airborne infectious disease exposure prevention plans activated and ensure that they fully train their staff on those plans and on the HERO Act's requirements.

PROPOSED WORKPLACE COMMITTEES GUIDANCE

On December 22, 2021, the NYSDOL issued a proposed rule on Section 2 of the HERO Act which requires employers with ten or more employees in New York State to allow such employees to form workplace safety committees. The committees, which could be formed at the written request of at least two nonsupervisory employees at a worksite, would be co-chaired by a nonsupervisory employee and an employer representative. The committees would work with employers on workplace safety and health issues.2 A hearing on the proposed rule, which would be adopted under New York's Labor Law Section 27-D, was held on February 9, 2022. 

REMINDERS ABOUT THE NY HERO ACT

Given the most recent extension of the designation and the NYSDOL's update to the model template, employers will need to continue to implement and enforce their airborne infectious disease exposure prevention plans and may want to consider whether to update their plan accordingly. Employers should remember that the NY HERO Act protects employees from retaliation for making a complaint about an employer's failure to comply with the law or the adopted prevention plan. Employers should provide training to managers to avoid retaliation against workers who raise complaints about failure to comply with the law or the adopted plan and to minimize the risk of a lawsuit. (The NY HERO Act permits employees to bring civil actions in court under certain circumstances.3) Employers should also ensure that their employee handbooks contain copies of their adopted current plan and that the current plan is posted in a visible and prominent location at the worksite.

Schnader will continue monitoring these legal developments.

Read more detailed information about the HERO Act in Schnader's client alerts:

Footnotes

1. See NY Hero Act, Model Airborne Infectious Disease Exposure Prevention Plan - https://dol.ny.gov/system/files/documents/2022/02/mock-p765_ny-hero-act_model-airborne-exposure-prevention-plan_02-10-22_0.pdf

2. 12-nycrr-part-850-dol-proposed-12.22.21.pdf

3. http://www.schnader.com/wp-content/uploads/2021/08/ALert_NY-Hero-Act.pdf

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