New York Revises COVID-19 Reopening Guidance & HERO Act Changes on the Way

Update: On June 11th, Governor Cuomo signed into law the HERO Act amendments described below.  On June 15th, New York hit a key 70% adult vaccination rate metric, meaning that the New York guidance updates below are now optional recommendations in most commercial settings; not strict requirements.  Note that, despite the lifting of many restrictions, unvaccinated individuals will still be responsible for maintaining proper distancing of six feet and wearing a mask as per federal CDC guidance. 

It’s been a busy month (year?) for New York employers – one that has brought several important updates with respect to employers’ reopening plans.  On the heels of the State’s May 19th adoption of the recent CDC guidance outlining increased privileges for fully vaccinated individuals, New York State updated its NY Forward COVID-19 reopening guidance on June 8, 2021, including its guidance geared toward office environments.  On June 15th, as New York hit a key vaccination metric -- 70% of adults have now received at least one vaccine shot -- the reopening requirements set forth below have now become optional recommendations. 

Revised New York Forward Guidance for Offices

The new guidance updates from the Governor’s office formally incorporate many of the previously signaled measures from other external guidance and announcements, including (i) the explicit adoption of the CDC guidance creating different rules for vaccinated and unvaccinated individuals into the industry-based guidelines; and (ii) the revision of many quarantine rules and daily health questionnaire requirements based upon previous Department of Health updates.  Among other things, the newest updates reveal the following changes from previous guidance (again, all of the below measures have now become optional in light of the 70% vaccination rate achievement):

• Capacity:  Gone are the days of 50% or 75% capacity caps.  Now, capacity is only limited by the space available for individuals to maintain required social distancing based on vaccination status.  For fully vaccinated individuals/parties, no social distancing is required.
• Confirmation of Vaccination Status:  Businesses may require proof of full vaccination status through paper form, digital application, or the State's Excelsior Pass. Alternatively, businesses may rely upon self-reporting of vaccination status.
• Daily Health Screenings:  The new guidance significantly revamps the rules governing required daily health screenings and the exclusion of individuals who answer affirmatively.  First, the updated guidance allows daily health screenings to be performed "via signage, at point of entry, by e-mail/website, by telephone, or by electronic survey before individuals enter the establishment."  This means that employers can implement the health check requirement by way of warning signage instead of through daily surveys if they so choose.  Further, the updated guidance no longer requires employers to inquire about symptoms, close contact, or COVID-19 infections that occurred in the last 14 days (the antiquated standard that has existed in the formal guidance despite Department of Health updates).  Instead, the State sets forth new daily health screening questions that accurately reflect previous public health authority shifts in isolation and quarantine guidelines for COVID-19.  Now, employers can ask all individuals the following three questions, and exclude individuals with affirmative answers (subject to some exceptions listed below):
  1. Is the employee currently experiencing, or has the employee recently experienced (in the last 48 hours), any new or worsening COVID-19 symptoms? Note: the new guidance reflects a more common-sense understanding of symptoms, noting some COVID-19 symptoms may occur with pre-existing medical conditions, such as allergies or migraines, that have been diagnosed by a health care practitioner. In those cases, the guidance states that individuals should only answer "yes" if symptoms are new or worsening.
  2. Has the employee had close contact (being within six feet for at least 10 minutes over a 24-hour period) or proximate contact (as determined by health authorities) in the past 10 days with any person confirmed or suspected to have COVID-19? Note: the new guidance clarifies that fully vaccinated individuals and those who have fully recovered from COVID-19 within the past 3 months are not required to be excluded from workplaces.  Instead of quarantining following close contact, these individuals will need to monitor for COVID-19 symptoms for 14 days following an exposure.
  3. Has the employee tested positive for COVID-19 through a diagnostic test in the past 10 days?
• Masks:  Even with the lifting of most restrictions, the Governor's recent announcement indicates that although fully vaccinated individuals do not need to wear masks, unvaccinated/status unknown individuals must still wear masks.  Unvaccinated/status unknown individuals may only remove their mask indoors while physically distanced, seated, and eating/drinking; and outdoors while maintaining six feed of distance.
• Physical Distancing:  Similar to the continued mask rules, though fully vaccinated individuals do not need to be physically distanced, unvaccinated/status unknown individuals are still required to maintain six feet of distance from others.  In lieu of six feet of social distance, appropriate physical barriers may be used for unvaccinated/status unknown individuals so long as they do not present a health or safety hazard.

Amendments to the New York HERO Act & Other Significant Developments

These guidance updates come against the backdrop of recently enacted amendments to the New York HERO Act.  On June 11, 2021, the State enacted significant amendments to the New York HERO Act, which modify the Act’s reach and requirements in several important ways that employers will welcome.  We wrote about the recently enacted HERO Act, in its original form, here.  The Act requires the New York State Department of Labor (NYSDOL) to promulgate industry-specific safety standards for the prevention of airborne disease that employers must adopt, among other things. The enacted amendments change the following provisions:

• Effective Date:  The amendments extend the NYSDOL’s time to promulgate standards until July 5, 2021 (the standards were previously set to be released by June 4, 2021).
• Compliance Deadline:  New York employers will have 30 days from the publication of the NYSDOL standards to adopt an airborne infectious disease exposure plan.  Employers can choose to either adopt the applicable model standard or to establish an alternative plan that meets or exceeds the model standard’s minimum requirements.
• Removal of Significant Employer Liability Provisions: The original law provided for liquidated damages to the employee “unless the employer proves a good faith basis to believe it was in compliance.” Thankfully for employers, the amendments eliminate this language and reverse the potential damages:  now, a court may award costs and reasonable attorneys’ fees to the employer if the employee’s lawsuit is “frivolous.”
• Opportunity for Employers to Cure Perceived Defects: The original text of the law granted a seemingly broad private cause of action to employees in cases whether they perceived health and safety defects in their workplace.  The broad original language of the law is tempered by the amendments, which require an employee to provide the employer with 30 days’ notice and an opportunity to cure a violation before they can bring a civil action, unless the employee “alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.”  Where the employer corrects the deficiency, the employee no longer has a viable cause of action.  It remains unclear what type of notice the employee must give to the employer to comply with these new provisions.
• Six Months’ Statute of Limitation:  The amendments restrict employees’ ability to bring suit further by instituting a statute of limitation.  Now, employees cannot bring a civil action if more than six months has passed from the date the employee had knowledge of the violation.
• Jurisdiction of Workplace Safety Committees:  The original version of the law included language which many employers viewed as giving the joint workplace safety committees (described more fully in our previous post) broad jurisdiction over all sorts of New York Labor Law issues.  Thankfully for employers, the amendments clarify that the joint workplace safety committees are only authorized to raise issues relating to policies put in place due to the HERO Act relating to occupational safety and health.

Though there are many moving pieces to digest, employers must familiarize themselves with these updates as they plan for a compliant return to the office.  We will continue to track and discuss these important developments, including the NYSDOL’s forthcoming release of NY HERO Act standards and continued updates to reopening guidelines.

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