NY Employers Are Required to Adopt Airborne Infectious Disease Prevention Plan by August 5

July 21, 2021

By: Kimberly Klein and Rebecca Zittell

On July 6, 2021, the New York State Department of Labor (“NYS DOL”) published its infectious disease prevention standard, as well as a model prevention plan for airborne infectious disease exposure, as required by the New York Health and Essential Rights Act (the “NY HERO Act”).  Employers have until August 5, 2021 to either adopt the model plan or establish their own plan equaling or exceeding the standards in the model and will have until September 4, 2021 to distribute the prevention plan to employees.  As previously reported, the NY HERO Act mandates steps employers must take to minimize the spread of airborne infectious diseases.

Despite this, employers are not required to implement the airborne infectious disease exposure prevention plan until an airborne infectious disease is designated by the New York State Commissioner of Health “as a highly contagious communicable disease that presents a serious risk of harm to the public health.”  At this time, despite the continued risk of COVID-19, no such designation has been made.  As a result, while employers are obligated to adopt and distribute a prevention plan, such plans are not yet required to be in effect.

In addition, the NYS DOL has promulgated 11 specific prevention plan templates for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. Employers also must post the prevention plan in a prominent visible place in the workplace, incorporate the plan in their employee handbook, and distribute the plan to employees upon hire and within 15 days after reopening following a closure due to an airborne infectious disease.  Employers with at least 10 employees are required to permit the establishment of a safety committee to address safety workplace concerns effective November 1, 2021.

According to the NYS DOL’s model prevention plan, during an outbreak of an airborne infectious disease employers are required to implement a number of “minimum controls,” including employee health screenings, face coverings, physical distancing, hand hygiene, and cleaning and disinfecting.  The NYS DOL’s model plan contains many similarities to the recently-archived New York Forward industry-specific guidelines, which went into effect during the height of the COVID-19 pandemic last year. 

For questions concerning the NY HERO Act or implementation thereof, please contact Kimberly Klein or Rebecca Zittell at (212) 554-7800.