Originally Published : September 13, 2021

Dear Family and Friends –

Good afternoon!  Today is the day we have been waiting for—Key to NYC, New York City’s vaccine mandate comes into full effect and it’s been one week since the HERO Act was activated.  Please read below for what you need to know now about both of these governmental requirements and our latest guidance and thoughts.

COVID-19 Designated As Airborne Infectious Disease

I know this sounds ridiculous, but on Monday, September 6, 2021, New York Governor Kathy Hochul just designated COVID-19 an airborne infectious disease under the state’s HERO Act. If you don’t remember the HERO Act, it requires employers to implement a workplace safety plan to protect workers from an airborne infectious disease outbreak. Employers should have had plans in place by August 5, 2021.

Ok, so you don’t have a plan in place. That’s fine. The New York Department of Labor has produced a general model airborne infectious disease prevention plan, as well as a plan specific to the food service industry.  Click on the link, download the template, and implement it now!  We are standing by to assist you create a plan that works for you and your operations.

Or, you do have a plan in place (because you just downloaded and completed the model above, or you were on the ball as of August 5), what now? If you haven’t already you must:

  • Provide copies of the plan to your employees in both English and the employee’s primary language.
  • Have the plan available upon request for employees, the New York State Department of Labor and the New York Department of Health.
  • Add the plan to your employee handbook.
  • Review the plan at your next all-staff meeting, alerting your staff that it has been activated, and explaining their rights under the plan. Distribute copies and let your staff know where the plan is now prominently displayed. (We suggest with your other required postings).
  • Implement the plan immediately.

So, what does this mean for my business?

The HERO ACT provides some expanded employee rights under New York Labor Law, Section 218-B. Most notably employees now have:

  • The right to report violations of the safety plan to any state, local, or federal government entity, public officer or elected official.
  • The right to report exposure concerns or seek assistance/intervention from their employer, or any state, local, or federal government entity, public officer or elected official.
  • The right to refuse to work where the employee reasonably believes that such work would expose them, other workers, or the public to an unreasonable risk of exposure to an airborne infectious disease.
  • Protection from retaliation for exercising these rights.

Alright, what changes do I need to make to daily operations?

The HERO ACT going live effectively returns us to where we were before former Governor Cuomo lifted the COVID restrictions statewide in July.

We have traveled back in time to daily employee health screeningsmasking when appropriatesocial distancing where possiblehygiene stationscleaning protocolquarantine protocol, and airflow technology.

Some of you have never stopped operating with these protocols in place. If you have, the HERO ACT requires you to reassess your workplace safety plan.

How does the HERO ACT interact with the KEY TO NYC Vaccine Mandate?

This is a good question. Arguably, designating COVID-19 an airborne infectious disease under the HERO ACT provides employees with a remedy if their employer does not actually enforce the Key to NYC mandate.


For example, our clients have asked whether an employee can refuse to work in a setting where they must serve unvaccinated guests. The HERO ACT absolutely gives an employee the right to refuse, and legal recourse if they are forced to work in that setting.We also suspect that enforcement of Key to NYC and the HERO ACT will go hand-in-hand on a state and local level. Which is to say, if a city agency comes to inspect your Key to NYC plan, be prepared to provide your HERO ACT plan as well, and be sure to be compliant with both.

Does the Key to NYC Actually Fit?


So as you probably know by now, the Key to NYC goes into effect today.  We want to know how you and your business have implemented the mandate and what consequences (both intended and unintended) you have seen.  To that end, about 10 days after the Key to NYC goes mandate goes into effect, on September 22, 2021 at 11:00 AM, we will be hosting another HR Confidential Webinar to discuss the Key to NYC mandate and the HERO ACT activation.  You can register for the webinar here.  We’ll be doing a deep dive on all of this and more at our next HR Confidential Webinar.  We look forward to seeing you there!

Inspections Have Begun!


We have received reports from various clients that they have already been inspected today!  There has been no consistently stated rhyme or reason for the inspections (Key to NYC vs. Hero Act vs. DOH Regular Inspection), nor has there been consistency between what information the inspectors are seeking.  Moreover, one client has reported that they have been inspected four times, just today, from the DOH, DOT, and the HOUSING AUTHORITY.  We are eager to hear your experiences.  If you are willing, please fill out the following survey.  You can find the link here.

Closing Thoughts and More Moving Pieces


As of June 1, 2021, it became unlawful to use propane containers of any size to provide comfort heating in outdoor dining areas. We are seeing a crackdown from city agencies on this front. Now is the time to reassess your outdoor heating as we head into the Fall. The FDNY guidance is available here.

President Joe Biden recently announced a vaccine mandate that will affect up to 80 million Americans. If your business employs more than 100 people, then you and your staff are included in this mandate. We will update you as we know more and once the United States Occupational Safety and Health Administration (OSHA) releases final rules and guidance.

Hurricane Ida Relief is available for businesses that were affected by the storm. You can get more information from the city here.Sometimes it’s hard to remember why we work so hard to follow local, state and federal labor laws. Sometimes it feels like it’s a calculated effort to make the business of doing business even harder. This New York Times Opinion piece on the importance of workers’ rights is a nice reminder of why we do what we do.

Finally, we would be remiss not to take a moment and remember 9/11 just after to its 20th anniversary. The restaurant industry in New York City was an integral part of the city’s overall recovery in the aftermath of so much incomprehensible loss. We have always been there for NYC and we always will be.

As always, we are standing by to assist you and your business with the ever changing landscape.  We hope to see you at our next webinar and encourage you to sign up for our HR Confidential Newsletter, here.

Thanks again,