On May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (“NY HERO Act), which mandates employers to implement extensive workplace health and safety protections from future airborne infectious diseases. The HERO Act applies to all employers with worksites located within New York State, except for government employers and healthcare employers who are covered by the federal Occupational Health and Safety Administration’s Emergency Temporary Standards (discussed in our previous legal briefing).

On July 7, 2021, the New York Department of Labor issued new Airborne Infectious Disease Exposure Prevention Standards and a general Model Airborne Infectious Disease Exposure Prevention Plan. In addition to the general model plan (applicable to all covered employers), the Department of Labor also issued additional model plans that specifically address the unique health and safety concerns in several industries including agriculture, construction, retail, food services, and others.

With the release of the model standards and policies, employers now have until August 6, 2021 to establish their airborne infectious disease exposure prevention plans. Employers may adopt the model plan or create their own plan. If employers do choose to create their own plan, they face several requirements – including minimum standards and collaboration with employees and collective bargaining units.

Within 30 days of adopting a plan, employers must provide a written copy to employees, post it in a conspicuous location in each worksite, and add it to their employee handbook. Moving forward, the plan must be provided to all new employees upon hiring. If in the future, the worksite closes due to an airborne infectious disease, the employer must provide a written copy of the plan to employees within 15 days of reopening.

At this time, employers only need to adopt and provide written notice of an airborne infectious disease prevention plan. The safety measures in the plan do not need to be implemented until such time that the New York State Commissioner of Health designates an airborne infectious agent or disease as a highly contagious communicable disease that prevents a serious risk of harm to the public health. In other words, employers are not required to implement the plan for each flu season or other endemic infectious disease. Until such time that the Commissioner of Health publicly designates a particular airborne infectious disease as triggering implementation of the plan, employers are not required to perform the plan’s safety measures.

In the event that the Commissioner of Health makes a future designation, employers will be required to review the plan, update it if necessary to conform with current information and government guidelines, activate the plan at each worksite, and provide written copies to each employee. During the duration of the airborne infectious disease designation, employers must ensure that employees adhere to the plan. Employers will need to assign a non-supervisory employee to enforce the plan’s requirements, monitor and maintain exposure controls, and keep up to date on information and guidance issued from the Department of Health and Centers for Disease Control and Prevention.

Employers who fail to adopt or comply with an appropriate plan could face significant penalties, including monetary fines of up to $10,000.00. Employers should take immediate action to adopt a plan and ensure compliance with all statutory requirements.

Our team has extensive experience in counseling businesses on labor and employment matters and regulatory compliance. If you have any questions about this Legal Briefing or whether your airborne infectious disease prevention plan complies with NY HERO Act requirements, please contact any member of the Firm at (585) 730-4773.

This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC