Labor & Employment Law Alert

On September 9, 2021, the New York State Department of Labor (“NYSDOL”) issued FAQs for New York employers on the New York HERO Act (the “Act”).  As detailed in our previous two client alerts on the Act and the model standards, the Act requires employers in New York to implement workplace health and safety plans to prevent exposure to airborne infectious diseases, including COVID-19.  The NYSDOL has created industry specific model standards to guide employers.  The recent FAQs released by the NYSDOL, which can be found here, clarifies employer obligations under the law.  Here are some of the key takeaways:

  • All covered business (all non-governmental industries across New York and work sites, with a few exceptions) must have an airborne infectious disease exposure plan within 30 days from the release of the NYSDOL’s airborne infectious disease policies. Those policies were released on August 5, 2021. 
  • In creating their plan, employers may use one of the industry specific templates that most closely applies to their industry or create their own alternative plan. An alternative plan must equal or exceed the minimum standards provided by the Department of Labor’s Model Airborne Infectious Disease Exposure Prevention Plan.  If employers make alterations to one of the model plans beyond the open fields of such templates, the plan may be considered an “alternative plan” and requires employee review and participation.  
  • The Model Airborne Infectious Disease Exposure Prevention Plan is best suited for office environments.
  • The Act’s requirements are triggered when the New York State Commission of Health designates that a highly contagious communicable disease presents a serious risk of harm to the public health.
  • Once designated, employers must review the worksite’s exposure prevention plan and update it to ensure it incorporates current information, guidance, and any mandatory requirements issued by federal, state, or local officials. The plan must be verbally reviewed with employees.   The “verbal review” does not have to be in person, and can be done through audio or video conference technology.  The plan must also be posted at the worksite and accessible to all employees during all work shifts.  “Employees” includes independent contractors. 
  • A written copy of the plan must be provided to employees within 30 days of adopting the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and upon the hiring of a new employee. The copy must be provided in the employee’s primary language, if available. If a copy is not available in the employee’s primary language, the employer may provide them with a copy of an English language notice. 
  • Employers with 10 or more employees must establish and administer a labor-management workplace safety committee to ensure that workers play a role in worksite safety and to permit employees to raise safety and health concerns. This requirement goes into effect on November 1, 2021, and the NYSDOL will provide further guidance in the future. 
  • Employers are required to add the infectious disease exposure plan to their employee handbook.

The Act’s requirements are not specific to COVID-19.  They are meant to help prepare for any future airborne infectious disease.  Even in the absence of an airborne infectious disease designation, employers are required to develop an infectious disease exposure plan, provide it within 30 days of adoption, and continuously monitor and review the plan to reflect new or modified aspects of business operations.   We are still waiting the NYDOL to issue its regulations providing more guidance to employers.

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