NY HERO Act and Mask Update

February 17, 2022

On September 6, 2021, New York designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health,” thus bringing the provisions of the NY HERO Act into effect. Under this designation, all employers must activate their Airborne Infectious Disease Exposure Prevention Plans, a set of measures implemented to prevent the spread of infectious diseases in the workplace.

The original designation was set to expire on September 30, but was subsequently extended five times, the last of which occurred February 15. Employers must now continue to enforce their prevention plans until March 17. The New York State Department of Health (NYSDOH) will continue to monitor COVID-19 developments and determine whether or not to extend the designation for additional time. Prior to the expiration of the designation on March 17, the NYSDOH will announce its reevaluation of the situation and if the designation will be extended once again.

In accordance with the expiration of the statewide mask mandate on February 10, the guidelines on mask wearing under the HERO Act have also been modified. Employers were previously required to have a workplace policy mandating masks, but now masks are only recommended. Employers are still free to require masks in the workplace for all employees, or, in the alternative, they may choose to require masks be worn only by employees who have not yet been vaccinated.

Certain workplaces require everyone to wear a mask, regardless of their vaccination status. This includes health care settings, such as hospitals and doctors’ offices, and group residential facilities, such as nursing homes and homeless shelters.

In New York, students and staff members are still required to wear masks when they are on school property, including outdoors and while on school buses. Governor Hochul has stated that there is a possibility this mandate could end in March, but no definitive statements have been made.

While students and school staff in New Jersey are still required to wear masks during school, Governor Murphy recently stated that the mandate will be lifted as of March 7, 2022. Despite lifting this mandate, many districts in New Jersey have stated that they will keep requiring masks in their schools past March 7.

Similarly, Connecticut’s Governor Lamont announced that the State plans to eliminate their mask mandate for schools and childcare centers, effective on February 28, 2022. On that date, Connecticut will allow the determination on whether to require masks in these locations to be made at the local level.

We will continue to monitor this matter and issue additional alerts for further developments.

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