By Daniel I.Small and Robert S.Whitman

Seyfarth Synopsis: This week, Governor Hochul announced that she will lift the mask-or-vaccinate mandate for nearly all public places of business on February 10, 2022.  The New York Department of Labor has now revised its model safety plan under the HERO Act to eliminate the mask requirement in most settings.  Other HERO Act measures remain in effect through at least February 15, 2022.

We reported previously that, while Governor Hochul lifted the mask-or-vaccinate mandate as of today for most business settings, New York employees were still required to mask under the New York HERO Act through at least February 15, 2022.

However, yesterday the New York Department of Labor issued a revised HERO Act model safety plan which permits most employers to lift masking requirements under the HERO Act.  The new safety plan states that, effective yesterday, February 10:

  • 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.
  • 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 operating in New York should adopt this new safety plan and, for those outside of the industries still subject to the State’s mask mandate, can consider dropping the remaining masking requirements under the HERO Act.

Employers must still abide by the other required mitigation measures (e.g., daily health screenings) under the HERO Act through at least February 15, 2022.  These requirements remain in place as long as the Health Commissioner continues to designate COVID-19 as highly transmissible and the current designation is in place through February 15.  While there have been no reports whether the designation will be extended for a fifth time in the coming days, we expect the Commissioner to let the designation expire on February 15.

Seyfarth will continue to monitor developments in this space and provide updates when available.