What New York Employers Need to Know About Changing COVID-19 Rules

​In addition to adapting to recent federal updates, leaders in New York state and New York City are loosening their COVID-19-related safety protocols. Here are the key takeaways for covered employers.

What's Changing?

"New York state and New York City employers and businesses should be on the lookout for significant changes over the next few weeks," said Carol Goodman, an attorney with Herrick Feinstein in New York City.

The Key to NYC vaccination requirement—which applies to patrons who enter indoor dining, fitness and entertainment spaces—was lifted March 7.

Mayor Eric Adams said the city's "numbers continue to go down day after day" and the requirement will be lifted "as long as COVID indicators show a low level of risk."

However, the vaccine mandate for employers remains in place at this time. "In other words, the requirement that private-sector workers be vaccinated to work onsite in New York City has not yet changed," Goodman noted.

At the state level, the NY HERO Act—which designated COVID-19 as a highly contagious communicable disease—is set to expire on March 17.

"We are waiting to see if this will be further extended by the governor," Goodman said. The act was recently revised to reflect that indoor masking is recommended but not required.

Continuing COVID-19 Plan Requirements 

Since COVID-19 is designated as a highly contagious disease, employers in the state continue to have obligations under the NY HERO Act until at least March 17.

"Employers must have a plan that specifically addresses COVID prevention in the workplace," explained Jenifer Bologna, an attorney with Jackson Lewis in White Plains, N.Y.

Currently, the NY HERO Act requires employers to consider guidance from the U.S. Centers for Disease Control and Prevention (CDC) when developing policies, and the CDC's latest metrics allow many communities to ease their indoor masking requirements.

The new federal guidance sorts counties into three groups: high, medium or low COVID-19 risk. Under the CDC's metrics, indoor masking isn't necessary in areas with low risk. In areas with medium risk, the agency recommends that people talk to their health care providers about masking if they are immunocompromised or otherwise more likely to experience severe symptoms. The CDC recommends that people continue to wear masks in public, indoor settings in high-risk areas.

"Under the new CDC metrics, most of [New York state] has low community levels of COVID-19, thus masking is no longer required," Bologna said. "But other controls still are required under the HERO Act plan."

For example, employers must ensure employees conduct daily health screening. "They don't have to require employees to complete forms, but, at minimum, they should have a plan in place that requires employees to self-screen before reporting to work," she said.

The CDC has recommendations about various COVID-19 prevention methods that employers should consider when developing their prevention plans, including vaccination, masking, ventilation, physical distancing, testing, hand-washing, disinfecting, monitoring health daily, and following quarantine and isolation rules.   

"Employers do not have to have a plan that includes all these requirements, but they should have a plan that adopts whichever preventions standard or combination of standards that is effective for their workplace," Bologna suggested.

What should employers do if the HERO Act expires? She said employers should continue to implement COVID-19 prevention plans that effectively address the transmission risk for their specific workplace.   

Although the Occupational Safety and Health Administration (OSHA) does not have a specific standard for COVID-19, the Occupational Safety and Health Act's general duty clause requires employers to provide a workplace free of recognized hazards. 

Compliance Tips

Employers should use the COVID-19 Community Level tool on the CDC's website to make decisions on masking policies, recommended Amanda Blair, an attorney with Fisher Phillips in New York City. "The tool is comprehensive, and the guidance clearly states the actions that should be taken based on the COVID-19 community level," she said.

Now that the CDC has changed its standards for determining community spread, many employers in New York can make mask usage optional for their employees and customers. "However, employers should also be mindful that many employees are still dealing with the physical and psychological effects of COVID-19 and should understand that the transition to a post-pandemic workplace will not be easy for all," Blair noted.

Employers should let employees know that they can chose to continue wearing masks and that the company will continue to follow applicable health and safety guidance. "If we have the misfortune to have another variant surge, employers can expect restrictions to be put back in place," Blair said.

Bologna noted that some employers may want to continue with the protocols they have in place in light of their unique circumstances or specific industry risk. 

"Ultimately, it is important that employers adopt a plan that is effective for their workplace that takes into account current pandemic conditions," she said. "While it certainly feels good to see COVID protocols rolling back after two years, employers must be aware of continued compliance obligations and have effective protocols in place to address them."