NYSDOL Updates Model Prevention Plan to Address Face Coverings in Fully Vaccinated Workplaces

On September 23, 2021, the New York State Department of Labor (NYSDOL) updated its Model Airborne Infectious Disease Exposure Prevention Plan under the New York Health and Essential Rights Act (HERO Act). As detailed in our prior advisories, the NYSDOL issued guidance and FAQs detailing employer obligations under the HERO act, which were triggered on September 6, 2021, by the New York State Department of Health's designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.

The key revision in the updated model prevention plan relates to face covering requirements in workplaces where all individuals on the premises are fully vaccinated. In such workplaces, face coverings are recommended, but not required.

Specifically, Section 4 (Face Coverings) of the updated model prevention plan now provides the following:

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

Employer Action Item

Employers with fully vaccinated workplaces should consider updating their prevention plans to reflect the increased flexibility with regard to face coverings provided by the language in the updated model prevention plan.

Prior Advisories

• Employer Obligations Under New York's HERO Act Are Triggered by Declaration That COVID-19 Is an Airborne Infectious Disease, 09.09.21
• NYSDOL Guidance and FAQs Relating to New York's HERO Act, 09.14.21

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

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