NY HERO Act: NYSDOL Releases Airborne Infectious Disease Exposure Prevention Standard and Model Plans – Employer Action Required

The NYS Department of Labor (“NYSDOL”), in consultation with the NYS Department of Health (“NYSDOH”), has published an Airborne Infectious Disease Exposure Prevention Standard (“Standard”), Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific templates for the prevention of airborne infectious diseases, in accordance with the recently enacted New York Health and Essential Rights Act (“NY HERO Act”).  Private New York employers must now adopt, by August 5, 2021, an airborne infectious disease exposure prevention plan (“safety plan”) which meets or exceeds the NYSDOL’s minimum standards, and post and distribute their safety plan to employees, as required under the NY HERO Act. 

Background

Earlier this year, New York enacted the NY HERO Act, a law which requires private New York employers to, among other things, adopt a safety plan for the prevention of airborne infectious diseases.  See NY Legislature Passes HERO Act to Establish Mandatory Workplace Safety Protocols to Prevent COVID and Other Airborne Infectious Diseases.  The NY HERO Act directed: (1) the NYSDOL, in consultation with the NYSDOH, to publish model standards for such plans; and (2) covered employers to adopt a safety plan for their workplace within 30 days of the NYSDOL publishing its model standards.  See New York State Legislature Amends the HERO Act.  On July 6, 2021, the NYSDOL published its Standard, model plan, and industry-specific templates.  See https://dol.ny.gov/ny-hero-act. 

• Employers may choose to adopt the NYSDOL’s industry-specific template for their industry (or the NYSDOL’s model plan, if the employer is in a sector without a specific NYSDOL industry template, e.g., an office-based workplace) or establish an alternative safety plan that meets or exceeds the law’s minimum requirements. In any circumstance where an alternative safety plan is adopted, the employer must develop such plan pursuant to an agreement with the collective bargaining representative, if any, or with meaningful participation of employees where there is no collective bargaining representative, for all aspects of the plan, and such plan shall be tailored and specific to hazards in the specific industry and work sites of the employer. 
• For employees covered by a CBA, the requirement to adopt a safety plan may be waived by a collective bargaining agreement, provided that for such waiver to be valid, it must explicitly reference the applicable section of the NY HERO Act.

Required Employer Actions

Under the NY HERO Act, employers must now take the following actions to establish their own safety plans and post and distribute these plans to employees.

1. Adopt their safety plan by August 5, 2021.

2. Distribute their safety plan: 

a.  to all employees, within 30 days of adopting the plan (e.g., no later than September 4, 2021, for a plan adopted on August 5, 2021);

b.  within 15 days after reopening after a period of closure due to airborne infectious disease; and

c.  to new employees, upon hire.

3. Post their safety plan in a visible and prominent location within each worksite.

4. Include their safety plan in their employee handbook if the employer provides an employee handbook to its employees.

5. Make the safety plan available, upon request, to all employees and independent contractors, employee representatives, collective bargaining representatives, and the Commissioner of the NYSDOL and the Commissioner of the NYSDOH.

When posting and distributing their safety plan, employers must be mindful of the following:

• Safety plans must be provided in English and in the language identified by each employee as their primary language. The NYSDOL advises that it will be publishing its model plans in Spanish “in the coming days” (as required under the NY HERO Act). The NYSDOL will also determine additional languages in which to publish its model plans. When an employee identifies as their primary language a language for which a model plan is not available from the NYSDOL, the employer may provide its safety plan in English to such employee.
• The NY HERO Act defines the “employees” covered by the law broadly to include “any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status” including (a) part-time workers; (b) independent contractors; (c) domestic workers; (d) home care and personal care workers; (e) day laborers; (f) farmworkers and other temporary and seasonal workers; (g) individuals working for digital applications or platforms, staffing agencies, contractors or subcontractors on behalf of the employer at any individual work site; and (h) any individual delivering goods or transporting people at, to or from the work site on behalf of the employer, regardless of whether delivery or transport is conducted by an individual or entity that would otherwise be deemed an employer under the New York Hero Act. Employers must therefore ensure that all such covered individuals receive a copy of the employer’s safety plan as required under the NY HERO Act. 

Notably, while employers must act now to adopt and publish their safety plans, the employer’s safety plan will not go into effect (i.e., employers will not be required to implement their plan) unless an airborne infectious disease is designated by the NYS Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.  At present, no such designation has been made (i.e., plans are not currently required to be in effect).  

Please do not hesitate to contact any of our attorneys if you need assistance adopting and distributing a safety plan for your workplace or have questions generally regarding compliance with the NY HERO Act.