Frankly Speaking: Did NY Gov. Hochul end workplace mask requirements for most employees, or NOT?
Before you send me the angry email you’re composing in your head, let me explain (oh, go ahead, send him an angry email just for fun!).
As you already know, under one of NY Gov. Hochul’s previous orders, face coverings (just call them masks, face coverings sounds creepy) were required to be worn by employees, customers, and visitors in all indoor public places – including offices – unless proof of vaccination was required for entry. Then, yesterday Gov. Hochul announced the order would expire today, February 10, 2022. So now, most businesses, with certain exceptions, will no longer need to ensure that customers and visitors are masked.
Many employers and employees celebrated the announcement (I have a feeling you’re going to ruin it for them), but something about the announcement bothered me. Then, it hit me (I hope it hurt!). The so-called “indoor mask mandate” that was about to expire and the NY HERO Act – which requires all employees to wear masks in the workplace – are two separate things! Why does that matter (you took the question right out of my head)? Because the HERO Act requirements are in effect until at least February 15, 2022.
On September 6, 2021, the NY commissioner of health designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” That action triggered the HERO Act required all employers to implement their Airborne Infectious Disease Exposure Prevention Plans(you just triggered a cramp in my brain). Among the Act’s requirements was that every employer mandate all employees wear masks in the workplace – regardless of individual vaccination status – unless everyone on-site, not just employees, was fully vaccinated. Furthermore, unless addressed beforehand, employees would be required to continue wearing masks until at least February 15, 2022!
Now, the Good News! NY updated the language in its HERO Act model plan as follows:
EFFECTIVE FEBRUARY 10, 2022 Employees will wear appropriate face coverings in accordance with guidance from the 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.
Employers should note that the acting commissioner of health may extend COVID’s designation as a highly contagious communicable disease beyond February 15, 2022. And, yes, that means employers may be required to keep their Airborne Infectious Disease Exposure Prevention Plans in effect. But, with this change in the model policy language, most employers now have the option of whether to require employees to wear masks at work.
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Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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