Updated February 15, 2022: The New York City Department of Health and Mental Hygiene’s guidance was recently updated to no longer require masks for unvaccinated people in indoor and outdoor public spaces. Instead, the city now merely recommends everyone wear masks regardless of vaccination status.

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On February 9, 2022, New York State Governor Kathy Hochul announced that the state is largely discontinuing the mandate that businesses require proof of vaccination or masks to enter the premises. The mandate will remain in effect for businesses in certain industries (discussed below) but, for the most part, the state is leaving masking requirements to business owners and local governments. The New York HERO Act Model Airborne Infectious Disease Exposure Prevention Plan was also amended on February 9 to remove the masking requirements. The state still recommends, as part of the updated prevention plan, that all individuals wear face coverings in indoor public settings as an “added layer of protection.”

What Did the Mandate and the NY HERO Act Previously Require?

As we previously reported, under the so-called “Vax or Mask” mandate, businesses and venues had to either require proof of vaccination as a condition of entry or require face coverings for employees and all other persons on-site age two and older.

The NY HERO Act, which was activated on September 6, 2021, required in its model plan, among other things, face coverings for employees “to the greatest extent possible” and that employees avoid unnecessary gatherings and maintain six feet of social distancing. The model plan was later updated to allow employees not to mask if everyone else in the workplace was vaccinated against COVID-19.

Note that other aspects of the model prevention plan currently in effect remain unchanged, such as the requirement for employers to engage in health screenings of employees. Moreover, the requirement under the HERO Act that an employer allow employees to establish joint labor-management workplace safety committees also remains unchanged (and, in fact, the state issued a proposed rule regarding the workplace safety committees last month).

Industries That Are Still Covered by the “Vax or Mask” Requirement

According to the governor, the “Vax or Mask” requirement is still in effect in the following industries: all healthcare settings regulated by the Department of Health and other related state agencies; nursing homes; adult care facilities; correctional facilities; detention centers; homeless shelters; domestic violence shelters; public transit and transportation hubs; trains; planes and airports.

May an Employer Still Require Masks?

Employers may continue their own masking and social distancing policies. The discontinuance of the state’s mask mandate and the amendment to the HERO Act model plan do not preclude employers from maintaining existing requirements.

Other Masking Requirements and Considerations That May Still Apply

In addition to the state’s recommendation that individuals continue to wear masks, employers outside of the above industries should take notice of the myriad other guidance and requirements that may still apply to some employees:

• The New York City Department of Health and Mental Hygiene December 20, 2021 guidance requires masks for all unvaccinated individuals when in a public space, whether indoors or outdoors;
• Individuals should follow New York State Department of Health guidance that requires masking for persons who are returning to work after quarantine or isolation. For example, State Department of Health February 4, 2022 guidance sets forth that if an unvaccinated employee, or an employee who was fully vaccinated and is eligible for a COVID-19 booster but who has not received a booster, has a close contact with someone with COVID-19, they may stop quarantining if they do not develop symptoms and test negative for COVID-19 at least five days after the close contact; however, these individuals must continue to wear a well-fitting mask around others in public until 10 days after the date of the last close contact with someone who has COVID-19. Additionally, the state guidance says that a person whose isolation ends after five full days (if the individual is fever-free for 24 hours without the use of fever-reducing medication and other symptoms have improved) for five additional days after the end of the five-day isolation period;
• Employees who received an accommodation from a vaccination mandate due to religious or medical reasons and whose accommodation required the employee to wear a mask should ostensibly continue to wear a mask; and
• Employers whose worksites are covered by OSHA and subject to the OSHA General Duty Clause (29 U.S.C. § 654, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”) should consider engaging in a job hazard analysis to identify and assess any COVID-19-related hazards in the workplace, as part of the employer’s commitment to safety, prior to any determination to allow employees to go unmasked at such worksites.

Employers are encouraged to consult with counsel to work through questions that may arise, to review and update existing airborne infectious disease prevention plans, and to stay apprised of the continually changing legal landscape in New York regarding COVID-19.