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NY HERO Act: State Updates Model Prevention Plan Language

On September 23, 2021, the state has released updated Airborne Infectious Disease Model Prevention Plans (Plan(s)). The Plans have been updated to include revised language related to face coverings and physical distancing.

Face Coverings

The updated language on face coverings no longer stresses that face coverings should be worn throughout the workday to the greatest extent possible; it now only provides for what constitutes proper wearing of a face covering and provides two options for employers on the implementation of face coverings. The option an employer can choose would be based on whether their workplace is fully vaccinated or not, as follows:

  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.
  • [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.

Physical Distancing

The updated language on physical distancing removes the requirement for employers to avoid unnecessary gatherings and maintaining a distance of at least six feet. Instead, a more generalized statement has been provided which states employers should follow New York Department of Health or Center for Disease Control guidance as applicable.

Are Employers Required to Update Their Plans to Include These Changes?

There is nothing in the current guidance that explicitly states whether an employer who adopted the first version of the state’s model prevention plan must update it to include the new language. However, in reaching out to the state for additional guidance, they advised that employers who adopted an initial version of a model plan would still be in compliance if they do not make these updates, and that not doing so, would not cause it to be considered an “alternative plan”.

Next Steps for Employers

Employers are also encouraged to seek the guidance of their own legal counsel for additional guidance on whether to adopt any changes to their existing plan.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.