As previously discussed, the NY HERO Act requires all New York employers to implement workplace health and safety protocols in response to a “highly contagious communicable disease,” as designated by the New York State Commissioner of Health.  On July 7, 2021, the New York Department of Labor finally released the anticipated HERO Act standards and industry-specific model plans.

Notably, the HERO Act standards only apply in relation to “an airborne infectious agent or disease designated by the Commission of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and do not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

The standards and industry-specific model plans include requirements cover the following topics:

1. employee health screenings,
2. face coverings,
3. physical distancing,
4. workplace hygiene stations,
5. regular cleaning and disinfecting of shared equipment and surfaces and housekeeping,
6. personal protective equipment,
7. compliance with quarantine guidelines in cases of exposure and infection response during a designated outbreak,
8. advanced engineering requirements, such as air flow and exhaust systems,
9. compliance with local laws,
10. the appointment of supervisory employees to maintain enforcement of these new standards,
11. regular reviews of employer policies, and
12. anti-retaliation provisions

Although the NY Department of Health continues to grapple with COVID-19 pandemic, interestingly, the NY Department of Labor has clarified that the Commissioner of Health has not designated COVID-19 as a highly contagious communicable disease.  Therefore, the HERO Act standards are not currently being enforced.

This does not completely relieve employers from satisfying the requirements spelled out in the HERO Act itself though.  Employers must still:

• adopt the industry-specific template model policy as published by the DOL or establish an alternative plan that meets or exceeds the Standard’s minimum requirements no later than August 6, 2021;
• provide a copy of the adopted airborne infectious disease exposure prevention plan to all employees and post it within each worksite within 30 days from adoption, and
• provide a copy of the adopted plan to all new employees within 30 days from adoption.

In other words, employers must adopt a written plan, but the standards and the employer’s airborne infectious disease plan are not in effect.

Upon adopting the relevant plan and after distributing  to employees, the written plan needs to be reviewed and updated when necessary to reflect new or modified tasks and procedures affecting occupational exposure and/or new or modified employee assignments.  Most importantly, if the Commissioner of Health makes a designation of a highly contagious communicable disease that presents a serious risk of harm to the public health, employers must be prepared to implement all of the requirements spelled out in the HERO Act standards and promptly activate the written airborne infectious disease plan.

Although the HERO Act standards are not currently in effect or otherwise enforceable at this time, employers still need to implement certain workplace controls, especially for unvaccinated individuals.  As discussed in our prior article, Federal OSHA’s most recent guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace – advises employers to continue enforcing certain workplace controls, which include requiring unvaccinated employees to wear face coverings and practice social distancing.  While OSHA does make clear that its updated guidance is not a standard or regulation, and it creates no new legal obligations, OSHA does specifically reference its enforcement authority under the OSH Act’s General Duty Clause.  In light of that fact and OSHA’s active COVID-19 National Emphasis Program, employers are advised to follow OSHA’s updated guidance.