The Standard is designed to take effect when the NYSDOH designates a disease outbreak as a “highly contagious communicable disease.”
The HERO Act, signed into law on May 6, 2021, and amended on June 14, 2021, is legislation designed to create enforceable health and safety regulations aimed at preventing airborne infectious diseases in the workplace. The law applies to all New York employers, regardless of size, and includes a requirement that employers establish a joint labor-management workplace safety committee. The law also includes an anti-retaliation provision and provides for civil penalties and a private right of action.
In keeping with the HERO Act’s new requirements, the New York State Department of Labor (NYSDOL), in consultation with the Department of Health (NYSDOH), has issued the guidance required by the law, as we discussed in our previous Alert. As mandated by the HERO Act, the guidance includes the airborne infectious disease exposure prevention standard (the Standard) and model airborne infectious disease exposure prevention plans. NYSDOL published a main model plan as well as industry-specific plans for employers in the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation and retail.
The Standard is designed to take effect when the NYSDOH designates a disease outbreak as a “highly contagious communicable disease.” The Standard defines this as “an airborne infectious agent or disease designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.” The NYSDOL clarified that there is currently no such designation for the COVID-19 pandemic. As such, while employers must comply with the timing requirements set forth in the HERO Act for adoption and distribution of model airborne infectious disease exposure prevention plans, the plan will not be put into effect until a future designation of a highly communicable disease by the NYSDOH. The Standard also provides that it does not apply where OSHA has issued temporary or permanent standards regarding COVID-19 or other airborne infectious agents and diseases.
Regardless of whether an employer adopts their respective model airborne infectious disease exposure prevention plan or develops their own alternative plan, the Standard requires inclusion of certain minimum exposure controls including health screening, face coverings, physical distancing, hand hygiene facilities, and cleaning and disinfecting. The model plans include options for employers to designate advanced controls, such as elimination of certain risky activities, alterations to ventilation systems, and other engineering controls.
What This Means for Employers
As we previously discussed, employers should review their applicable model plan and determine whether it will complete the model airborne infectious disease exposure prevention plan or an alternative plan, depending on the features of their operations. Then, employers should complete the plan by August 5, 2021, as required by the HERO Act. If employers choose to establish an alternative plan, they must also determine how they will collaborate with employees (or their collective bargaining representative, if applicable) in developing the plan. Employers have until September 4, 2021, to provide copies of the plan to employees in English and their primary language, if a model plan has been issued in that language. Moving forward, employers should provide their plan to all newly hired employees upon hire, or within 15 days after reopening following a period of closure. Employers should take steps to publish their plan in their handbook.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Christopher D. Durham, Jenna M. Decker, or the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.