New York State Essential Employers Must Provide Masks for Certain Employees

Effective 8 p.m. on April 15, 2020, all essential employers in New York state must provide free of charge and require the wearing of masks for all employees who come into direct contact with customers or members of the public. This is based on an executive order signed by Governor Andrew Cuomo. (Here is a link to the list of essential services under “New York State on Pause.”) The goal is to safeguard public health during the COVID-19 pandemic.

It is important for employers to comply with this public health law. The New York State Department of Health (DOH) posted guidance for employers. Here are few highlights that essential employers need to know to help make sure you are in compliance:

• DOH acknowledges that there are shortages of PPE, including face coverings, and that these should be prioritized for healthcare workers. However, this does not relieve an employer’s obligation to provide face coverings for employees.
• Face coverings include (but are not limited to) surgical masks, N-95 respirators, face shields and cloth masks (such as homemade sewn, quick cut or bandanas).
• Employees are allowed to use their own face coverings.
• Employers are required to provide face coverings for contractors, including subcontractors.
• Direct interaction with the public is to be determined by the employer, but, at a minimum, shall include any employee who is routinely within close contact (six feet or less) with members of the public, including but not limited to customers or clients.
• Employees are required to wear such face coverings except where doing so would inhibit or otherwise impair the employee’s health.  
• Such employees and others who may be vulnerable to COVID-19 due to age or underlying health conditions should consult with their employer to consider reasonable accommodations. These include, but are not limited to alternate work assignments or work locations with limited interactions with the public and different PPE.
• Note that both the American’s with Disabilities Act (ADA) and NYS Human Rights Law (HRL) require that employers engage in an “interactive process” with employees to determine reasonable accommodations for qualified individuals with disabilities.

It is also important for employers to note that this executive order does not relieve responsibilities under OSHA. OSHA’s Respiratory Protection Standard (29 CFR 1910.134) requires that in any workplace where N-95 respirators are necessary to protect the health of the employee or whenever respirators are required by the employer, the employer shall implement and maintain a written respiratory protection program with worksite-specific procedures.

Rose & Kiernan, Inc. continues to monitor and relay information related to the many aspects of dealing with COVID-19 and the workplace. If you have any questions about this topic, please contact us here or by calling (800) 242-4433. You can also view our COVID-19 resources page for important information about Rose & Kiernan’s response to the virus outbreak.

Please note that news and events surrounding the COVID-19 pandemic are changing quickly. The information provided in this blog post represents where things stand on the date of publication.