On September 6, 2021, New York Governor Kathy Hochul announced that the Commissioner of Health designated 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 (“HERO Act”). This designation requires most New York employers to promptly activate their workplace safety plans. The designation will remain in effect until September 30, 2021, at which time, the Commissioner of Health will determine whether to continue the designation.

The HERO Act, signed into law on May 5, 2021, required New York employers to adopt an airborne infectious disease exposure plan by August 5, 2021 and distribute the plan to employees by September 4, 2021. The New York State Department of Labor (“DOL”) created industry specific model plans that can be found at https://dol.ny.gov/ny-hero-act. Employers may use one of the DOL templates or develop their own plan with the participation of their employees or collective bargaining agents. Employers are required to include the workplace safety plan in their employee handbook.

Now that COVID-19 has been designated an airborne infectious disease, employers must:

  1. Immediately review the worksite’s exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to COVID-19;
  2. Finalize and promptly activate the worksite exposure prevention plan;
  3. Verbally review the plan with employees;
  4. Provide each employee with a copy of the exposure prevention plan; and
  5. Post the plan at the worksite and ensure that it is accessible to employees during all work shifts.

Employers must distribute the plan to all employees, independent contractors, and individuals working for staffing agencies, who are working at a jobsite controlled by the employer. However, employers only need to conduct the verbal review with their own employees. In addition, the verbal review may be performed via audio and video conferencing technology. Copies of the plan must be provided in English or in the language identified as the primary language of an employee if the model plan is available in that language. Currently, the model plan is available in both English and Spanish.

The DOL recently published FAQs regarding the HERO Act and the DOL will be promulgating regulations regarding the Act in accordance with the State Administrative Procedure Act. Employers should monitor guidance issued by the New York State Department of Health and CDC and update their workplace safety plan, as needed.

For more information regarding the topic discussed, please contact any member of Tannenbaum Helpern’s Employment Law practice or your usual Tannenbaum Helpern contact.

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