New York Governor Lifts COVID-19 Guidance and Signs Legislation Amending the HERO Act

On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates workplace health and safety protections from any airborne infectious disease that the commissioner of health has designated as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” On June 11, 2021, Governor Cuomo signed legislation to amend the NY HERO Act. The amendments extend the effective date of section 1 of the act, pertaining to the creation and adoption of airborne infectious disease plans. Pursuant to the amendment, section 1 will take effect on July 5, 2021. Section 2, which pertains to the establishment of workplace safety committees, will take effect on November 1, 2021.

The passage of the amendments was followed by the June 15, 2021, lifting of COVID-19 restrictions and New York Forward industry guidance now that 70 percent of all New York residents age 18 or older have received at least 1 dose of a COVID-19 vaccine. Although state health guidelines will remain in effect for large indoor event venues, schools for pre-K to grade 12 students, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings, other businesses may now elect to either discontinue or retain in whole or in part the New York Forward guidance.

Next Steps for New York State Employers

Adhering to existing federal COVID-19 guidance

Pending the publication of the model standards for the act, employers may want to continue adhering to applicable federal guidance for addressing the spread of COVID-19. For example, on May 13, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its Interim Public Health Recommendations for Fully Vaccinated People (which continues to apply by virtue of New York’s May 19, 2021, adoption of this guidance), and on June 10, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) for COVID-19 focusing on healthcare employers, as well as separate guidance for all industries not covered by the ETS.

Remaining alert for publication of model standards

The act directs the commissioner of the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, to establish and disseminate customized standards for “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, as determined by the [NYS DOL] commissioner, in consultation with the commissioner of health.” The act also directs the NYS DOL commissioner to provide “a general model airborne infectious disease exposure prevention standard” for all other worksites.

Preparing to adopt an airborne infectious disease exposure prevention plan

Pursuant to the act, as amended, employers are directed to establish plans for their operations “[w]ithin thirty days after the commissioner publishes the model general standard and the model standard relevant to the industry.” An employer may either adopt the model standard or implement “an alternative plan that equals or exceeds the minimum standards provided by the model standard.”

Preparing to bargain with unions or seek employee participation, if considering an alternative plan

An employer that elects to adopt an alternative plan must do so “pursuant to an agreement with the collective bargaining representative, if any.” If the employer’s workforce is not represented by a union, the employer must obtain “meaningful participation of employees” with respect to “all aspects of the plan.” The law further dictates that any alternative plan “shall be tailored and specific to hazards in the specific industry and work sites of the employer.”

Preparing to disseminate the airborne infectious disease exposure prevention plan to employees, incorporating the plan into a handbook, if one exists, and posting the plan in visible and prominent locations

The amended act provides that an employer must provide the plan to employees “within thirty days after adoption of the plan” or “within fifteen days after reopening after a period of closure due to airborne infectious disease.” Thereafter, the employer is obligated to provide the plan to newly hired employees upon their hire. 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.

Preparing to designate one or more supervisory employees to enforce compliance with the plan and governmental guidance

Pursuant to the act, employers are required to identify “one or more supervisory employees to enforce compliance with the … plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease.”

Preparing to train supervisory employees about their responsibilities

Although the act does not specifically require the training of supervisory employees, employers may wish to consider training supervisory employees who are designated to enforce compliance with the plan about their responsibilities. In addition, employers may wish to consider preparing to train all supervisory employees about the anti-retaliation provisions of the act that bar any “employer, or his or her agent” from “discriminat[ing], threaten[ing], retaliat[ing] against, or tak[ing] adverse action against any employee for … [e]xercising their rights” under the act or the plan adopted pursuant to the act; “[r]eporting violations” to any “government entity, public officer or elected official”; “[r]eporting an airborne infectious disease exposure concern to … their employer” or to any “government entity, public officer or elected official”; or “[r]efusing to work where [the] employee reasonably believes, in good faith,” that such work would create “an unreasonable risk of exposure to an airborne infectious disease,” provided the employer received notice and “failed to cure the conditions or … had or should have had reason to know about the … conditions” and nonetheless maintained them.

Beginning to consider logistics for workplace safety committees

Section 2 of the act requires employers with “at least ten employees” to permit employees to establish one workplace safety committee per worksite. Although this section of the act does not take effect until November 1, 2021, following the adoption of a plan and dissemination of the plan, employers subject to this portion of the act may wish to begin considering the logistics for such committees sufficiently far in advance of the deadline.

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.