As we previously reported, on September 6, 2021, the New York State Commissioner of Health issued a designation determining COVID-19 to be “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” Such designation triggered requirements on employers to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (“HERO Act”).
The New York State Department of Labor (“NYDOL”) issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace. As explained in our prior blog post, those requirements include:
- employee health screenings;
- employee face coverings;
- personal protective equipment;
- workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
- cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
- social distancing;
- complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
- air flow, exhaust ventilation, or other special engineering design requirements;
- designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
- notice to employees; and
- verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.
Employers were required to adopt a model plan or develop an individualized plan that met the HERO Act’s requirements by August 5, 2021, to provide the plan to employees by September 4, 2021, and to implement the plan on September 6, 2021, when the Commissioner of Health designated an airborne infectious disease (COVID-19) as a highly contagious communicable disease that presents serious risk of harm to public health.
The September 6, 2021 designation, which was set to expire on September 30, 2021, has been extended. Namely, on September 30, 2021 the Commissioner of Health issued a new designation. The new designation continues until October 31, 2021, at which time the Health Commissioner “will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation.”
To the extent employers have not yet adopted and implemented their exposure prevention plans, they are advised to do so given the past deadlines. Additionally, employers are advised to prepare for the HERO Act’s Section 2 requirements, which take effect November 1, 2021. Section 2 of the HERO Act requires employers with 10 or more employees to allow employees to create a joint labor-management workplace safety committee. Such a committee can, among other things, review workplace policies relating to occupational safety and health. That means that if an employer modifies its HERO Act plan after November 1, 2021, and it is also an employer covered by Section 2 of the HERO Act, it will need to review the new or modified plan with a workplace safety committee allowed by Section 2 of the HERO Act. NYDOL is expected to provide guidance on Section 2 of the HERO Act prior to November 1, 2021. And, as always, employers are advised to continue to monitor, and certainly, check back in on October 31, 2021, regarding designation status by the Commissioner of Health.