New York COVID-19 Response Update – NY HERO Act Activated

The State’s daily COVID positivity rate is 2.37% and the 7-Day Average positivity is also 2.37%, according to a press release the Governor’s office released Monday, October 4th. There are 2,208 COVID hospitalizations around the State, 529 COVID patients in the ICU, 300 intubations and 24 New Yorkers died from the virus on Sunday, October 3rd.

In an effort to combat the Delta variant, which has contributed to an increase in COVID numbers over the past two months, Governor Kathy Hochul announced a new set of mask mandates on Wednesday, September 15th. Under these new mandates, masks are required regardless of vaccination status. Specifically, the mandates apply to all employees, residents and visitors in four types of settings:

  • State-regulated child care and day care facilities. Masks are required for children ages two and older.
  • Residential congregate programs operated, licensed, certified or approved by the Office of Children and Family Services.
  • All programs and facilities licensed or registered by the Offices of Mental Health, Office of Addiction Services and Supports, Office of People with Developmental Disabilities, and Office of Temporary and Disability Assistance.

The Governor is also pushing forward with her previously announced vaccine mandates, which include:

  • State employees must receive the COVID-19 vaccine by October 12th or receive weekly COVID testing.
  • All workers in home care agencies, hospices, and adult care facilities must receive the COVID vaccine by October 7th, with no option to receive weekly testing.
  • All SUNY and CUNY students attending classes on-campus must have received the COVID vaccine by September 27th, with no option to receive weekly testing
  • MTA employees must receive the COVID-19 vaccine by October 12th or receive weekly COVID testing.
  • All Port Authority employees must receive the COVID-19 vaccine by October 12th or receive weekly COVID testing.

The Governor’s vaccine mandate also required all workers in hospitals and nursing homes to receive the COVID vaccine by September 27th, with no option to receive weekly testing. However, some unvaccinated healthcare workers pushed back against that requirement, including a group of 17 unvaccinated doctors and nurses who filed a lawsuit. Their case led federal Judge David Hurd in Utica to issue a temporary order blocking its enforcement pending further proceedings. In response, the Governor said the state would respect the court’s decision for workers claiming a religious exemption, though she said her policy was on solid legal footing based on case law first established in 1905. For other unvaccinated workers, she said she intended to move forward with the mandate.

“What is looming for Monday (September 27th) is completely avoidable and there’s no excuses,” she said.

The Governor’s final warning to healthcare workers stressed that they may lose their jobs if they did not comply. Afterward, the vaccination rate among healthcare workers jumped by 64,000 in the final week before the deadline, from 82% to 92%. Beginning September 28th, hospitals and healthcare facilities around the State began complying with the mandate by suspending and laying off hundreds of healthcare workers who did not receive the vaccine. The suspensions and lay-offs have led to staffing shortages, causing longer wait times in emergency rooms, postponement of elective surgeries in some hospitals, and even the temporary closure of some urgent care facilities. Defending the mandate, Governor Hochul said that, despite the shortages, there have been no major crises, and that the State is prepared should any crises occur.

On Monday, September 6th, Governor Hochul triggered the HERO Act, signed by Gov. Cuomo earlier this year, by having the Commissioner of Health designate COVID-19 as an “highly contagious communicable disease” under the law. Under the HERO Act, all employers are required to adopt a workplace safety plan to protect employees from airborne infectious diseases. With the Commissioner’s designation, employers are now required to implement the plan.

“While we continue to increase our vaccination numbers, the fight against the Delta Variant is not over and we have to do everything we can to protect our workers,” the Governor said. “This designation will ensure protections are in place to keep our workers safe and support our efforts to combat the virus and promote health and safety.”

This designation was initially set to expire on September 30th, but was extended until October 31st, 2021.

In July, the New York State Department of Labor, in consultation with the NYS DOH, released the Airborne Infectious Disease Exposure Standard that all employers must meet when developing their plans. Also released was a Model Airborne Infectious Disease Exposure Prevention Plan, which employers could use as a template for their plans.

The Airborne Infectious Disease Exposure Standard can be found here:

The Model Airborne Infectious Disease Exposure Prevention Plan can be found here: