NY HERO Act Update: New York State Updates Model Prevention Plan Regarding Face Coverings and Physical Distancing

[10.5.21]  The New York State Department of Labor has updated its New York Health and Essential Rights Act (“NY HERO Act”) Model Airborne Infectious Disease Exposure Prevention Plan (“Model Plan”) with new face covering and physical distancing requirements.  The Model Plan now has one face covering requirement for workplaces “where all individuals on premises, including but not limited to employees, are fully vaccinated” and another for workplaces where all individuals on premises are not vaccinated.  In workplaces where all individuals on premises are vaccinated, face coverings are recommended, but not required.  In all other workplaces, employees must “wear appropriate face coverings in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”  The Model Plan also states that “[w]hen in use, face coverings must cover the nose and mouth, and fit snugly, but comfortably, against the face.”  Individuals are considered fully vaccinated two weeks after receiving the second dose of a two-dose vaccine or two weeks after receiving a single-dose vaccine.   

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Activation of New York HERO Act Plans Extended Through October 31, 2021

[10.7.21]  The New York State Commissioner of Health (“Commissioner”) has extended the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York Health and Essential Rights Act (NY HERO Act) through October 31, 2021.  The Commissioner’s designation can be found on the New York State Department of Health website.  The Commissioner initially made such a designation on September 6, 2021, effective until September 30, 2021.  The Commissioner’s extension of the designation means that New York State employers must continue to implement their airborne infectious disease exposure prevention plans—that they were required to adopt under the NY HERO Act—at least through October 31.  The Commissioner will review the status of COVID-19 as presenting a serious risk of harm to the public health at that time and decide whether to continue the designation beyond October 31. 

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New York State Minimum Wage and Overtime-Exempt Salary Levels Will Increase for Employees Working Outside of New York City on December 31, 2021

[10.13.21]  The New York State minimum wage rates and minimum overtime-exempt salary levels for employees working outside of New York City will increase on December 31, 2021. New York State employers with employees working in the State and outside of New York City should review the changes and make the necessary adjustments to ensure they are in compliance with the new requirements when they become effective.

MINIMUM WAGE INCREASES

New York State’s minimum hourly wage rates for non-fast-food workers outside of New York City will increase on December 31, 2021, as follows:

• Nassau, Suffolk and Westchester counties: $14.00 to $15.00 per hour;
• Remainder of the State outside of New York City: $12.50 to $13.20 per hour.

As of July 1, 2021, the minimum hourly wage rate for fast-food workers statewide is $15.00 per hour.

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Federal Government Mandates That Federal Contractor Employees Be Vaccinated Against COVID-19

The Safer Federal Workforce Task Force (“Task Force”), led by the White House COVID-19 Response Team, issued guidance on Friday, September 24, 2021 (“Guidance”), mandating that employees of covered federal contractors be fully vaccinated against COVID-19 by December 8, 2021 (subject to medical and religious exemptions), and requiring federal contractors to implement masking and physical distancing requirements.  The Guidance was required under Executive Order 14042 (“EO”), which was signed by President Biden on September 9 and directed the Task Force to issue COVID-19 safety protocols for federal contractors.

Which Federal Contractors Must Comply With the Mandate? 

The vaccination mandate does not apply to current contracts, but will apply only to covered federal contractors and subcontractors who:

• Enter into a federal contract or contract-like instrument on or after November 14, 2021, which contains a clause requiring compliance with the mandate; or

• Have an existing contract for which an option to extend is exercised on or after October 15, 2021, which modifies the contract to include the clause requiring compliance with the mandate.
   

The vaccine mandate covers contracts and contract-like instruments for:

• Services, construction or a leasehold interest in real property;
• Services covered by the Service Contract Labor Standards;
• Concessions; and
• Those in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.
  
  

The vaccine mandate does not cover:

• Grants;
• Contracts or contract-like instruments with Indian Tribes;
• Subcontracts solely for the provision of products;
• Contracts and subcontracts equal to or below the simplified acquisition threshold ($250,000); and
• Employees who perform work outside of the U.S. or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation.

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President Biden Announces Private Sector and Federal Contractor COVID-19 Vaccination Requirements

On Thursday, September 9, 2021, President Biden announced as part of his six-pronged national strategy to combat COVID-19 that he has directed the Occupational Safety and Health Administration (OSHA) to develop and issue an Emergency Temporary Standard (“ETS”). It will require all private employers with 100 or more employees to ensure that their workforce is fully vaccinated or will require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before reporting to work.  It is estimated that the ETS will impact over 80 million workers.  The President’s announcement also stated that the ETS will include a requirement that covered employers provide paid time off for the time required for employees to get vaccinated or to recover if they experience an adverse reaction to the vaccine. 

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