December 5, 2021

Volume XI, Number 339

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December 03, 2021

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December 02, 2021

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New York HERO Act COVID-19 Designation Extended Through October 31, 2021

The New York State Commissioner of Health designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public” on September 6, 2021. Originally set to expire on September 30, the Commissioner has extended the designation through October 31. Accordingly, employers must continue to have their Airborne Infectious Disease Exposure Prevention Plans in place.

On September 23, 2021, the New York State Department of Labor (DOL) updated its Model Airborne Infectious Disease Exposure Prevention Plan. Although not readily reflected in the corresponding Exposure Prevention Standard and FAQs, the Model Plan now provides employers greater flexibility regarding masking and physical distancing requirements.

As amended, the Model Plan distinguishes between employers with a fully vaccinated workplace and those that do not. Previously, the Model Plan provided only that employees had to wear face coverings “to the greatest extent possible,” without reference to vaccination status. Now, if all persons in the workplace are fully vaccinated, including non-employees, the DOL is only recommending that all employees wear a mask.

[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.

If not everyone in the workplace is vaccinated, employees must wear masks in accordance with guidance from the state or the Centers for Disease Control and Prevention (CDC).

[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.

As to physical distancing requirements, the revised Model Plan states only that “Physical distancing will be used to the extent feasible” as advised by guidance from the Department of Health or CDC, as applicable. The Model Plan no longer refers to “avoiding unnecessary gatherings” or use of a mask when social distancing cannot be maintained.

Although seemingly providing employer more flexibility in implementing their plans based on the individual circumstances of each employer and worksite, the revised Model Plan does not provide much additional clarity. This is especially true until the state updates its Exposure Prevention Standard or FAQs on the HERO Act and Model Plan. What remains consistent, however, is an employer’s obligation to review their Airborne Infectious Disease Exposure Prevention Plans to ensure it incorporates the latest “information, guidance, and mandatory requirements issued by federal, state or local governments related to” COVID-19. Thus, it is imperative for employers to stay up to speed and current with guidance from all relevant sources.

For New York City employers, this includes the City’s September 29, 2021, guidance on how to handle positive COVID-19 cases in the workplace. The City asks employers to report all positive cases and information regarding close contacts to the NYC Health Department using the COVID-19 Facility Exposures form. The City also considers a fever to be 100.0°F or more, as compared to state and the CDC, which deem someone to have a fever only when their temperature reaches 100.4°F or greater.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 278
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About this Author

Jenifer Bologna Employment Lawyer Jackson Lewis
Of Counsel

Jenifer Bologna is Of Counsel in the White Plains, New York, office of Jackson Lewis P.C.

Ms. Bologna has extensive experience counseling employers on a variety of employment law issues. Ms. Bologna specializes in assisting employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, the most notable being the Americans with Disabilities Act and the Family and Medical Leave Act. In addition to counseling and training employers, Ms. Bologna represents management in workplace litigation in both...

914-872-6869
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

212-545-4080
Associate

Matthew J. Bass is an Associate in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in a wide range of labor and employment matters, including preventive advice and counseling.

While in law school, Mr. Bass served as the Managing Editor of the Washington and Lee Law Review and Lead Articles Editor of the German Law Journal. In addition, he served as a judicial intern in the U.S. District Court for the Southern District of New York. Outside of the classroom, Mr. Bass was the Chair of the...

914-872-8025
Associate

Henry S. Shapiro is an Associate in the Long Island, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Mr. Shapiro was the Senior Articles Editor for the Hofstra Law Review and he became a certified mediator in New York State. Mr. Shapiro completed a Concentration in Labor & Employment Law while in law school.

Prior to joining Jackson Lewis, Mr. Shapiro was an Associate at a Long Island...

631-247-4651
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