New York HERO Act Plans Activated
On September 6, 2021, the Commissioner of Health (the “Commissioner”) designated COVID-19 as an airborne infectious disease under the New York Health and Essential Rights Act (the “HERO Act”). Previously, New York employers were required under the HERO Act to adopt and distribute (but not implement) a written airborne infectious disease exposure prevention plan. Employers’ prevention plans must meet or exceed the New York Department of Labor’s Airborne Infectious Disease Exposure Prevention Standard (the “Standard”), which establishes minimum workplace health and safety standards for preventing exposure to airborne infectious diseases in the workplace. To meet this requirement, employers could either adopt one of the Model Plans applicable to their industry or establish an alternative plan that meets or exceeds the Standard. The deadline for employers to adopt a prevention plan was Aug. 5 and the deadline to distribute such plans was Sept. 4.
Now that COVID-19 has received such a designation, New York employers are obligated to promptly implement their exposure prevention plans and ensure compliance. Employers that have not yet adopted and distributed a prevention plan should do so quickly to avoid potential violations and penalties.
Employer Obligations
With the activation of the HERO Act, a New York employer must take the following steps:
1. Review and update its exposure prevention plan to incorporate current information, guidance, and mandatory requirements issued by federal, state, or local governments related to COVID-19. The Standard and Model Plans include minimum measures, and also require compliance with current CDC and NYDOH guidance and mandates. Required measures include:
“Stay at Home” policy for employees who develop symptoms of COVID-19;
Daily health screenings of employees at the start of each shift;
The use of face coverings throughout the workday to the greatest extent possible;
Physical distancing as much as feasible and avoiding unnecessary gatherings;
Proper hand hygiene and respiratory etiquette; and
Appropriate cleaning and disinfection practices.
The Model Plans also set forth advanced controls that employers are directed to consider for activities where the minimum controls alone will not provide sufficient protection for employees, including:
Engineering controls, such as ensuring proper and effective ventilation
Administrative controls such as disinfecting procedures for specific operations, employee training and capacity limits; and
The use of additional personal protective equipment.
2. Finalize and promptly activate the exposure prevention plan to enact mitigation measures such as conducting daily health screenings and providing face coverings;
3. Verbally review the exposure prevention plan with employees;
4. Provide training to employees on:
The signs and symptoms of the disease
How the disease can be spread
The activities and locations at the worksite(s) that may involve exposure to COVID-19
The use and limitation so exposure controls; and
A review of the Airborne Infectious Disease Prevention Standard, including employee rights provided under Labor Law Section 218-B.
5. Provide employees with a copy of the exposure prevention plan; and
6. Post a copy of the exposure prevention plan in a visible and prominent location at the worksite and ensure a copy is accessible to employees during all work shifts.
Continuing Obligations
The designation of COVID-19 as an airborne infectious disease is effective until September 30, 2021. The Commissioner will then review the level of COVID-19 transmission in the state and make further determination. As long as the Commissioner’s designation is in effect, each employer must take the following actions:
1. Assign enforcement responsibilities to one or more supervisory employees;
2. Monitor and maintain exposure controls; and
3. Regularly check for updated information and guidance provided by the New York State Department of Health and the CDC, and update the exposure prevention plan as necessary.
As of the date of this publication, New York State has not issued any guidance on the facemask and social distancing requirements under the exposure prevention plan in connection with an employee’s vaccination status. As such, vaccinated employees are not exempted from the requirements under the exposure prevention plan.
Additional Assistance
Delaney Vero, PLLC will continue to monitor the changes in the regulations and is ready to assist employers to navigate through the legal requirements under the HERO Act. If you have any questions, please contact Sarah Delaney Vero at sdv@delaneyvero.com or Koya Choi at kc@delaneyvero.com or (518) 917-3105.