NY Extends HERO Act Designation and Mask Mandate

The New York Commissioner of Health once again extended the designation of COVID-19 as highly contagious, thereby requiring employers to keep their HERO Act safety plans activated through at least February 15, 2022.  The Commissioner also extended the State’s mask mandate through February 1, 2022.

As previously reported (here, here, here, and here), New York State’s Commissioner of Health, effective September 6, 2021, designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, thus requiring employers to activate their safety plans under the NY HERO Act.  Although the initial designation lasted through September 30, 2021, the Commissioner subsequently extended the designation three times through January 15, 2022.

Given the recent surge of COVID-19 cases in New York due to the Omicron variant, the Commissioner has extended the designation once again, through February 15, 2022.  On or before February 15, the Commissioner will decide, based upon a review of the level of COVID-19 transmission at that time, whether to extend the designation further.

This means that employers must continue implementing their respective Disease Exposure Prevention Plan under the HERO Act, including daily health screenings and masking for workplaces where all individuals on premises are not fully-vaccinated, among other requirements.

Separately, and as discussed previously here and here, New York Governor Hochul declared that, through at least January 15, 2022, masks are required for employees, customers, and visitors in all indoor public places – including offices – unless the business or venue requires proof of vaccination to enter.  On January 13, 2022, the Commissioner of Health issued a revised Determination on Indoor Masking, which extends this mask mandate through at least February 1, 2022.

While both the HERO Act designation and the mask mandate were previously set to expire on the same day (i.e., January 15), they now have different expiration dates.  Yet, given that the two have effectively the same masking requirements for employees, employers should prepare to continue masking requirements through at least February 15 under the HERO Act, irrespective of the mask mandate’s current February 1 expiration date.

Seyfarth will continue to monitor developments in this space and provide updates when available.