Governor Hochul did not renew the state’s indoor mask mandate, and it expired at 12:01 a.m. on February 10. Indoor venues which were defined as “indoor public places”, including indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings will no longer have to enforce mask wearing or asking for vaccination status. However, businesses will still have the option to require masks or vaccination from their patrons or employees.
On February 23, the governor also announced the end of the state mask requirement in schools and childcare facilities as of March 2, 2022. Counties and cities may still require masks in schools and parents and guardians may still choose to send children to school in masks.
At present, masks will still be required in hospitals, nursing homes, shelters, transportation, courts, correctional facilities, and other related entities.
Employers who wish to relax mask wearing requirements for employees should closely monitor the recommendations from the NY Department of Health (DOH) and CDC and ensure adherence with other federal, state, and local requirements. Below is information on federal, state, and local laws which may impact an employer’s decision making.
When considering masks and/or vaccination mandates in the workplace, employers should keep in mind OSHA’s General Duty Clause which, in addition to compliance with hazard-specific standards, requires all employers provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA’s guidance makes it clear that unvaccinated workers still need to follow safety precautions such as mask wearing and physical distancing. Furthermore, OSHA expressed pursuing compliance violations via the General Duty Clause due to the withdrawal of its Vaccination and Testing ETS. Employers are encouraged to review OSHA’s guidance entitled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” for continued recommended safety measures.
Furthermore, employers in “high-hazard” industries who were subject to OSHA’s National Emphasis Program (NEP) during the pandemic should understand that these remain targeted industries for non-compliance with mitigating the spread of COVID-19, and employers in these industries must be extra diligent in establishing and maintaining policies to reduce scrutiny from OSHA. Additional information is available in OSHA’s Revised National Emphasis Program document (Refer to Appendix A for a list of target industries).
The lifting of the state’s mandate also does not impact local laws, and employers must still be mindful of any local laws regarding mask requirements and other COVID-19 health and safety related measures..
NY Workers’ Compensation
Of interest, the NY Workers’ Compensation Board has also launched a series of online educational programs to help workers who believe they contracted COVID-19 due to an exposure at work, especially those suffering from ongoing long-haul symptoms. This signals room for increased workers’ compensation claims, particularly, in work environments where there are not adequate safety and health measures in place.
NY HERO Act
At present, employer’s Airborne Infectious Disease Exposure Prevention Plans under the NY HERO Act remain active until March 17. This would mean that at a minimum, employers should be following any safety controls that they included in their plans regarding face coverings in the workplace in accordance with applicable recommendations from the NY Department of Health (DOH) or the Centers for Disease Control and Prevention (CDC). The DOH further advises unvaccinated individuals, including those with medical exemptions, continue to be responsible for wearing masks, in accordance with CDC recommendations.
The CDC’s current guidance no longer distinguishes between the vaccinated and unvaccinated with regard to its masking guidance. The CDC has also revised the metrics by which it evaluates COVID risk. Counties are divided into low, medium and high levels, based on hospitalizations, hospital capacity and total new cases, as shown in this CDC county tracker. The masking recommendations are as follow:
- Low: No masking is required.
- Medium: Individuals should consult with their doctors as to whether they should mask indoors. The CDC also recommends that they mask indoors if they have social contact with someone at high risk for severe illness (e.g., those who are older, have certain medical conditions, or are pregnant/recently pregnant).
- High: All individuals should mask “indoors in public.”
Next Steps for Employers
Multistate employers should review local and state masking requirements in other locations and continue to comply with those requirements where applicable. Employers in states without mask mandates in place are strongly encouraged to review the CDC’s latest guidance and weigh that against any other employment law related obligations to make an informed decision regarding their mask policy. Whether an employer should decide to forgo masks in the workplace will be a decision that should be made carefully and thoughtfully and should also be one that would consider the mitigation of the spread of COVID-19 in the workplace.
Employers should also ensure that employees who decide to continue to voluntarily wear a mask do not face unfair treatment including bullying, retaliation, discrimination, and/or harassment by supervisors, coworkers, and/or customers and clients. Employers should also ensure that zero tolerance messaging around on masking preferences is clearly communicated to employees and is reinforced by the businesses’ policies on workplace bullying and harassment/discrimination. Best practice is to provide this messaging in the form of a written communication to all employees.
HR Works will continue to monitor this and provided updated information as needed.