New York HERO Act: Exposure Prevention Standard and Model Plans Are Here

On May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which “mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic.”

On July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published an Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan. The agency also published industry-specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

The NYS DOL standard does not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and disease.”

In accordance with the act, employers must adopt a written exposure prevention plan by August 5, 2021. Employers will have an additional 30 days, or until September 4, 2021, to communicate the existence of such plan to employees, or must do so “within fifteen days after reopening after a period of closure due to airborne infectious disease.” Per the act, if an employer has a handbook, the plan must be included in the handbook. In addition, employers must post the plan “in a visible and prominent location within each worksite,” with the exception of a vehicle that serves as a worksite. In addition to the communication protocols outlined in the act, the NYS DOL standard specifies that during an outbreak of an airborne infectious disease, employers must provide a verbal review of the plan, provide each employee with a copy of the plan in English or in the primary language of the employee, post the plan conspicuously in the workplace, and ensure that it is accessible to employees during all shifts.

Under the act, employers may either adopt the NYS DOL model plan applicable to their industry or “establish an alternative plan that meets or exceeds the standard’s minimum requirements.” According to the standard, “[a]ny exposure prevention plan adopted by an employer shall contain [the outlined] exposure controls” and must “consider and incorporate controls applicable to the worksite as outlined in the appropriate industry specific model templates.”

The NYS DOL also clarified that the exposure prevention plans will only be activated “when 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.” While the COVID-19 pandemic is ongoing, the NYS DOL stated that as of the date of the publication of the model plan, an airborne infectious disease designation has not been made. Accordingly, while employers must adopt exposure prevention plans under the law, such plans are not required to be in effect until the commissioner makes such a designation.

Section 2 of the act, which takes effect on November 1, 2021, requires all private employers with at least 10 employees to allow employees to establish a joint employer-employee committee authorized to raise workplace health and safety issues and evaluate applicable policies. The NYS DOL is expected to release guidance regarding the implementation of these committees in the coming months.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.