September 8, 2021
By: Kimberly Klein
On September 6, 2021, Governor Kathy Hochul designated COVID-19 as an airborne infectious disease, triggering employers’ obligation to implement the New York Health and Essential Rights Act (NY HERO Act), as amended, which was signed into law on May 5, 2021. As previously reported in prior alerts, the NY HERO Act requires employers to adopt the State’s new Airborne Infectious Disease Exposure Prevention Standard (the “Standard”) and promulgate a prevention plan. The State has published industry-specific model plans, or employers can create their own plan that meets or exceeds the State’s standards. [NY Employers Are Required to Adopt Airborne Infectious Disease Prevention Plan by August 5; New York Requires Employers to Adopt Safety Standards to Reduce Spread of Diseases]
Despite that employers were required to adopt a prevention plan by August 5, 2021 and distribute the plan to employees by September 4, 2021, the plan did not have to be implemented until now, as the State did not previously designate COVID-19 “as a highly contagious communicable disease that presents a serious risk of harm to the public health.”
The prevention plan contains many of the requirements that were set forth in the recently-archived New York Forward industry-specific guidelines, including:
- Maintaining physical distancing, which may include limiting occupancy, restricting or limiting visitor entry, reconfiguring workspaces, erecting physical barriers, staggering shift/work hours, putting up signage, etc.;
- Requiring face coverings, gloves and other personal protective equipment (PPE), as appropriate;
- Performing daily health screenings (i.e. questionnaires, temperature checks, etc.);
- Cleaning and disinfecting the workplace;
- Avoiding unnecessary gatherings;
- Establishing a “Stay at Home” policy if an employee develops symptoms;
- Accommodating individuals with added risk factors, including underlying health conditions; and
- Restricting travel.
In addition, employers must train employees on “all elements of this plan,” including the following topics:
- The infectious agent and the disease(s) it can cause;
- The signs and symptoms of the disease;
- How the disease can be spread;
- An explanation of the prevention plan;
- The activities and locations at the worksite that could involve exposure to the infectious agent;
- The use and limitations of exposure controls; and
- A review of the Standard.
The training must: 1) take place during working hours; 2) be tailored to educational level and preferred language; and 3) be provided verbally in person or through telephonic, electronic or other means. If the training cannot occur during normal work hours, employees must be compensated for the training time with pay or time off.
The prevention plan must also provide that employers may not discriminate or retaliate against an employee (i) who reports conduct that the employee reasonably believes in good faith violates the plan; or (ii) who refuses to work because the employee reasonably believes in good faith that such work exposes the worker or others to an unreasonable risk of exposure, provided the employee notifies the employer verbally or in writing of the working condition and the employer fails to cure the deficiency. Employers must maintain all such communications for two years after the conclusion of the designation of a high risk disease by the State.
In addition, by November 1, 2021, employers with at least 10 employees must also establish a joint labor-management workplace safety committee per worksite, as described in our prior alert. The committee, which must include non-supervisory employees, will be able to raise health and safety concerns in the workplace and provide feedback on related policies, among other things.
The NY HERO Act is applicable to all employees of private employers without regard to an individual’s immigration status and includes part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers and other temporary and seasonal workers. While all employees must be provided with the prevention plan, employers do not have to train individuals working for staffing agencies, contractors or subcontractors.