We continue to see changing requirements related to COVID-19 workplace protocols. On June 15, 2021, New York State celebrated reaching 70 percent of its adult population having received at least one vaccination dose. As a result, the State lifted most of its New York Forward industry-specific COVID-19 guidelines—including social gathering limits, capacity restrictions, cleaning and disinfection, health screening, and gathering contact information for tracing—making them optional for most employers. The State has archived its industry-specific reopening guidance, which employers may, but are not required to, continue to follow. However, employers should be aware that, as of this writing, Governor Andrew Cuomo’s office had not given any indication that Executive Order 202 (“E.O. 202”), which declared a state of emergency on March 7, 2020, would be lifted before July 5, 2021, which is the date to which the most recent continuation of E.O. 202 extends. The continuation of the state of emergency furthers the governor’s authority to issue directives related to the pandemic.
What Obligations Remain for NY Employers?
Employers remain subject to guidance requiring them to prepare and maintain written business safety plans to prevent the spread of COVID-19 in their workplaces. In addition, as we most recently explained here, all employers will still have to comply with the HERO Act’s mandates, including the requirement that employers create and implement airborne infectious disease exposure prevention plans in accordance with forthcoming standards.
Recent guidance regarding workplace safety protocols for office settings remains recommended, though no longer required. Some business and sectors (including public transportation, public schools (K-12), and large-scale venues/events, such as professional sports arenas and entertainment sites), however, remain obligated to follow the guidelines.
The state continues to adhere to guidance from the Centers for Disease Control and Prevention (“CDC”), which currently states that while fully vaccinated individuals may refrain from masking and social distancing in most settings (exceptions include correctional facilities and homeless shelters), unvaccinated individuals continue to be responsible for wearing masks and maintaining social distance, even in settings where New York Forward guidance has been lifted. This means that employers can still impose safety requirements, such as requiring masks, or creating a segregated area where only fully vaccinated individuals may congregate without social distancing or masks, but most are not required to do so.
Governor Cuomo’s announcement states that unvaccinated individuals remain “responsible for wearing masks” and notes that CDC guidance still requires masks for unvaccinated persons.
What Is No Longer Required?
Although employers may keep safety protocols in place at their discretion, provided they are consistent with applicable law, such as the Americans with Disabilities Act, most workplaces in New York are now no longer required to maintain any of the following:
• Point-of-Entry Health Screenings: Businesses no longer need to ask employees or visitors to their facilities whether they’ve experienced symptoms, been exposed, or have recently tested positive for COVID-19.
• Physical Barriers at Workstations: Items such as Plexiglas shields, strip curtains, cubicle walls, or other impermeable dividers or partitions are no longer mandatory for work sites, although they remain advisable for workspaces that are within six feet of each other.
• Measures to Reduce Bidirectional Foot Traffic: Previously recommended markers, such as arrows in narrow aisles and corridors, distance markers, and other such signage may be removed.
• Rigorous Sanitization: While near-constant disinfection may no longer be necessary, frequent cleaning and sanitation, particularly in enclosed areas with high-touch surfaces and/or high traffic, remains advisable, especially in locations where the vaccination status of those present is unknown. Good handwashing and other personal sanitary measures should always be encouraged.
The increased numbers of vaccinated New Yorkers and lifting of COVID-19 restrictions is a welcome development. Employers, however, must remain vigilant regarding their continued obligations to maintain a safe and compliant workplace.