On September 6, 2021, New York Governor Kathy Hochul announced that the New York State Health Department's Commissioner designated Covid-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State's HERO Act.1 Under the HERO Act,2 this designation requires covered employers3 to activate their airborne infectious disease exposure prevention plan ("Plan"). Covered employers must now:

  1. Immediately review their Plan and make updates as needed to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern (Covid-19). The adopted plan must address a number of workplace safety measures.
  2. Finalize and promptly activate their Plan.
  3. Verbally review the Plan with employees, including discussing their rights under the HERO Act.
  4. Provide each employee with a copy of the Plan in English and in the language identified by the employee as their primary language (if the New York State Department of Labor has issued a model standard in that language).
  5. Post the Plan in a "visible and prominent location" at the worksite and ensure that it is accessible to employees during all work shifts.

Covered employers must ensure that:

  1. They have designated one or more supervisory employees to enforce compliance with the Plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace.
  2. They are monitoring and maintaining the appropriate workplace exposure controls such as: conducting health screenings; requiring face coverings and physical distancing; providing cleaning, disinfecting, and hand hygiene facilities; providing personal protective equipment ("PPE") to employees; and training employees regarding PPE use.
  3. They are regularly checking for updated information and guidance provided by the New York State Department of Health and the federal Centers for Disease Control and Prevention, and making corresponding updates to their Plan so it reflects current recommended control measures.

The New York State directive for covered employers to activate their Plans remains in effect until September 30, 2021. As of this writing, the Governor has not announced whether the Commissioner of Health is extending the designation beyond September 30. In view of the continuing danger of Covid-19 and the Delta variant in New York, however, it seems more likely than not that the requirement for covered employers to keep their Plans activated will extend past September 30. Stay tuned.

WHAT EMPLOYERS SHOULD DO NOW

Covered employers would be well-advised to ensure that they have implemented and distributed their Plans and trained employees on the Plan and their rights under the HERO Act. In addition, covered employers should provide training for managers to prevent retaliation against employees for raising safety concerns (following the Plan's requirements), reporting concerns about the Plan's implementation, or refusing to work where the employee reasonably believes, in good faith, that such work creates an unreasonable risk of exposure - for the employee or others - to an airborne infectious disease due to failure to comply with legally mandated workplace safety requirements. Employers are advised to confer with their employment counsel regarding implementation of the Plan and any questions regarding their legal obligations under New York's HERO Act. The New York State Department of Labor has provided guidance on the HERO Act in a set of detailed FAQs4 and in its "Airborne Infectious Disease Exposure Prevention Standard."5

Footnotes 

1. https://health.ny.gov/press/releases/2021/docs/2021-09-06_commissioner_designation.pdf

2. For detailed analysis of the HERO Act, see Schnader's earlier client alert at http://www.schnader.com/wp-content/uploads/2021/08/ALert_NY-Hero-Act.pdf.

3. The HERO Act's definition of "employer" covers private sector employers (with work sites in New York), and excludes government employers, specifically: "the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality." The definition of "employee" includes part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, temporary and seasonal workers, individuals working for digital applications or platforms, staffing agencies, contractors or subcontractors working on behalf of the employer at any individual work site, or individuals delivering goods or transporting people at, to or from the work site on behalf of the employer.

4. https://dol.ny.gov/system/files/documents/2021/09/heroact-factsheet-9-9-21.pdf

5. https://dol.ny.gov/system/files/documents/2021/08/p764.pdf

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