By Conn Maciel Carey’s COVID-19 Task Force

On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health.  Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.

The 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, on July 7, 2021.  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 Act’s requirements by August 5, 2021 and to provide the plan to employees by September 4, 2021.  Implementation of the plan, however, is only required whenever the Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents serious risk of harm to public health.  As such, implementation of HERO Act plans is a bit of a moving target that employers must constantly monitor.  With total cases reaching an all-time low during the pandemic earlier this summer, the NYDOL clarified that the Commissioner of Health had not (yet) designated COVID-19 as such a disease, thus making the HERO Act Standards unenforceable.  That decision, however, has since changed as the highly transmissible Delta variant rages on and over 97% of US counties are now at substantial or high levels of community transmission.

Since the Commissioner of Health has made a designation, employers must now activate their written airborne infectious disease plans.  The HERO Act Standards detail additional steps employers must take when implementing their airborne infectious disease exposure prevention plan, including immediately reviewing their current plan; updating the plan to incorporate current information, guidance and any mandatory requirements, as appropriate; and finalizing the plan.  Employers are also required to conduct a “verbal review” of the plan’s protocols and employee rights under the Act, which is akin to a training requirement.  Finally, employers must distribute the plans to employees, post a copy of the plan in the workplace, and ensure that a copy of the plan is accessible during all work shifts.

Although it is unclear whether employers will be provided some leeway/time to ensure that their plans are reviewed, updated, and implemented in the workplace, employers should promptly take steps to comply with the Act.  As the Delta variant continues to surge throughout America, there will almost certainly be updated guidance regarding these plans from the NYDOL in the near future.