Governor Cuomo Signs Amendment to HERO Act and Issues Updated COVID-19 Guidance for Offices

June 14, 2021

On June 11, 2021, Governor Andrew M. Cuomo signed Senate Bill S6768 amending certain provisions of the New York Health and Essential Rights Act (Act), in the New York Labor Law, relating to preventing occupational exposure to an airborne infectious disease. 

Section 1 of the Act requires that all employers in New York adopt a prevention plan to protect against the further spread of airborne infectious diseases in the workplace. The New York State Department of Labor (DOL) was directed to create and publish model airborne infectious disease exposure prevention standards concerning topics such as employee health screenings, face coverings, required personal protective equipment, accessible workplace hand hygiene stations, and maintaining health hand hygiene, cleaning, social distancing, and enforcement of compliance with the plan.

Employers will have 30 days from publication to adopt an airborne infectious disease exposure plan and 30 days, thereafter, to provide such plan to all employees in writing in English and in the language identified by each employee as the primary language of such employee.[1] Employers that provide an employee handbook to its employees are required to include the airborne infectious disease exposure plan in its employee handbook.

Once the model airborne infectious disease exposure prevention standards are published by the DOL, employers will need to act quickly to create and/or adopt a prevention plan. 

Interim Office Guidelines
Additionally, New York State announced that the remaining COVID-19 restrictions will be lifted once 70% of New Yorkers 18 years or older have received the first dose of the COVID-19 vaccine. In the meantime, the New York State Department of Health Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency (Interim Guidance) was updated as of June 8, 2021, consistent with its Implementing CDC Guidance (effective May 19, 2021). Some highlights of the revisions include the following:

A. Physical Distancing

1. The 75% maximum occupancy cap has been removed.

2. Businesses must ensure that capacity is limited by the space available for employees to maintain the required social distance consistent with CDC guidelines for fully vaccinated individuals.

3. Businesses may allow for fully vaccinated employees to be spaced at full capacity without 6 feet distancing within either the entire establishment or a separate designated part of the establishment, provided that all individuals are fully vaccinated.

4. Businesses may continue to deny admittance to individuals who fail to wear face coverings (subject to disability accommodation requirements).

5. Businesses are permitted to accept proof of vaccination status through paper form, digital application, or the State’s Excelsior Pass.

6. Businesses are required to ensure that a distance of at least 6 feet is always maintained between all employees in locations where vaccination status is unknown or in unvaccinated sections (e.g., common areas) unless safety or the core activity requires a shorter distance.

7. Businesses are permitted to post signage asking unvaccinated individuals to social distance and continue to wear face coverings.

8. Businesses are permitted to separate elevators for vaccinated and unvaccinated individuals.

9. Businesses are permitted to enforce a maximum capacity to maintain the required social distancing for unvaccinated individuals.

B. Screening
Health screening questions have been revised to require questions on whether the person:

a. is currently experiencing, or has, within the past 48 hours, experienced any symptoms of COVID-19;[2]
b. has had close contact (or proximate contact) in the past 10 days with any person confirmed by a diagnostic test, or suspected based on symptoms, to have COVID-19;[3] and/or
c. has tested positive for COVID-19 through a diagnostic test in the past 10 days.

While the NY Forward Safety Plan Template has not been updated, businesses are still required by the Interim Guidance to post completed safety plans on-site. As such, businesses should evaluate whether, based on the revised guidance, updates are needed to their current safety plan.

[1] Section 2 of the Act permitting the creation of a workplace safety committee will still take effect on November 1, 2021.

[2] In cases where the symptoms occur with pre-existing medical conditions, such as allergies or migraines (that have been diagnosed by a healthcare practitioner), individuals should only answer “yes” if the symptoms are new or worsening.

[3] This exclusion does not apply for individuals who (i) have been fully vaccinated against COVID-19 or (ii) have fully recovered from a lab-confirmed COVID-19 case within the past 3 months. (In lieu of quarantine following close contact, such individuals will need to monitor for COVID-19 symptoms for 14 days following exposure.)
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