Update 11/8/21: On October 31, 2021, the New York State Department of Health extended its designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health through December 15, 2021. Accordingly, all employers must continue to implement their airborne infectious disease prevention plans.

Update 10/7/21: On September 30, 2021, the New York State Department of Health extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm through October 31, 2021. This means that all employers must continue to implement their airborne infectious disease prevention plans.

Update 9/23/21: On September 23, 2021, the New York State Department of Labor updated its Model Airborne Infectious Disease Prevention Plan. The key revision in the updated model prevention plan is in respect to face covering requirements in workplaces where all individuals are fully vaccinated (face coverings are recommended but not required).

Update 9/13/21: The New York State Department of Labor issued guidance, a timeline of obligations and FAQs that detail the obligations employers have under the Act.

Update 9/10/21: On September 6, 2021, New York designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act. This designation means that employers are required to promptly activate their exposure prevention plan, in addition to other requirements outlined below under “Activation of Exposure Prevention Plan.”

Update 7/27/21: On July 6, 2021, the NYDOL published infectious disease prevention standards and model generic and industry-specific airborne infectious disease prevention plans. New York employers must adopt one of the NYDOL’s model plans, or an Alternative Plan that meets or exceeds the model standards by August 5, 2021 and post and distribute the plan to employees within 30 days after adoption, or by September 4, 2021 at the latest. The below article has been updated with the new guidance released by the NYDOL.

Update 6/3/21: New York State has adopted the Centers for Disease Control and Prevention’s May 13 “Interim Public Health Recommendations for Fully Vaccinated People” for most businesses and public settings. Employers are strongly encouraged to consult with counsel about compliance obligations under this new guidance and interaction with obligations under the NY HERO Act.

Update 5/10/21: New York Governor Cuomo signed the HERO Act into law on May 6, 2021.

Background

On April 23, 2021, the New York legislature passed the Health and Essential Rights Act (“HERO” or “Act”), which aims to protect workers and the public from the risks posed by COVID-19 and other airborne infectious diseases by requiring employers with worksites located in New York (NY) State to implement specific workplace health and safety standards. The Act was signed into law by Governor Cuomo on May 5, 2021 and subsequent amendments signed into law on June 14, 2021.

Compliance Snapshot

  • Employers with worksites in NY State must adopt an infectious disease prevention plan, either by adopting the New York Department of Labor (NYDOL) Model Prevention Plan, an industry-specific NYDOL model plan (see the NY DOL model Prevention Plans for 11 specific industries), or by establishing an alternative plan that equals or exceeds the model standard. Employers must adopt a prevention plan by August 5, 2021.
  • Employers must provide the airborne infectious disease exposure prevention plan to employees within 30 days of adopting a plan (no later than September 4, 2021), upon hire, upon request, and within 15 days after reopening due to an airborne infectious disease. In addition, employers must post the plan at worksites and must include the plan in any employee handbook.
  • Employers with 10+ employees must allow employees to establish and administer a joint labor-management health and safety committee that will be tasked with raising health and safety issues and evaluating workplace health and safety protocols. The joint-labor committee provisions go into effect on November 1, 2021.

Airborne Infectious Disease Exposure Prevention Plan

The HERO Act requires employers with a New York worksite to establish an airborne infectious disease exposure prevention plan (“Prevention Plan”), which must be designed to eliminate or minimize employee exposure to airborne infectious agents in the event of an outbreak of an airborne infectious disease. The Prevention Plan must include certain exposure controls, including employee health screenings, face coverings, personal protective equipment (PPE), regular cleaning and disinfection, effective physical distancing, among other things (as outlined in the NYDOL Airborne Infectious Disease Exposure Prevention Standard).

Employers can establish a Prevention Plan by adopting the NYDOL Model Prevention Plan, an industry-specific NYDOL model plan (see the NY DOL model Prevention Plans for 11 specific industries), or by developing their own Alternative Plan. If an employer decides to develop an Alternative Plan, the Alternative Plan must meet or exceed the model standards, must be developed with the meaningful participation of employees (or collective bargaining representative, if any), and must be tailored to the specific industry and worksites of the employer.

In addition, employers must review and update the Prevention Plan whenever necessary to reflect new or modified employee assignments, tasks, and procedures which affect occupational exposure.

New York Employers must adopt a plan by August 5, 2021. Though plans must be adopted by August 5th, the Prevention Plans are not required to go into effect until the New York State Commissioner of Health designates an airborne infectious disease as highly contagious communicable disease that presents a serious risk of harm to the public health.

On September 6, 2021, the New York State Commissioner of Health designates as a “highly contagious communicable disease that presents a serious risk of harm to the public health.” This designation means that employers are required to promptly activate their exposure prevention plan, in addition to other requirements outlined below.

Activation of the Prevention Plan

When a highly contagious communicable disease is designated by the NY Commissioner of Health, employers must:

  • Immediately review and update the Prevention Plan (if necessary, to incorporate current information, guidance and mandatory requirements);
  • Implement the Prevention Plan;
  • Conduct a verbal review of employer policies, employees’ rights under the HERO Act, and the employer’s Prevention Plan (whether in person or via audio/video recording); and
  • Provide employees with the Prevention Plan, post a copy of the Prevention plan at worksites, and ensure a copy of the Prevention Plan is accessible to employees during all work shifts.

While the designation remains in effect, employers must ensure the Prevention Plan is effectively followed by:

  • Assigning enforcement responsibilities to one or more supervisory employees;
  • Monitoring and maintaining exposure controls; and
  • Regularly checking for updated guidance by the State Department of Health and the Centers for Disease Control.

For more, please see the NY DOL Airborne Infectious Disease Exposure Prevention Standard.

Distribution of the Prevention Plan

The HERO Act requires employers to provide the Prevention Plan in the following formats:

  • In writing: Employers must provide the Prevention Plan to employees in writing within 30 days after it is adopted by the employer (no later than September 4, 2021), upon hire, upon request, and within 15 days after reopening after a period of closure due to an airborne infection disease. The Prevention Plan must be provided in English and the language identified by each employee as their primary language (however, if an employee identifies a language for which a model standard is not available by the NYDOL, the employer will be compliant if they provide the employee with an English language notice).
  • Worksite Posting: Employers must post the Prevention Plan in a visible and prominent location within each worksite (other than a vehicle).
  • Employee Handbook: If an employer provides an employee handbook to their employees, they must include the Prevention Plan in its handbook.
  • Upon Request: Employers must make the Prevention Plan available to all employees, independent contractors, employee representatives, collective bargaining representatives, the NYDOL, and the Department of Public Health, upon request.

Joint Health and Safety Committees

Under the Act, employers with 10+ employees must allow employees to establish and administer a joint labor-management workplace safety committee, two-thirds of which must be comprised of non-supervisory employees. The workplace safety committee shall be authorized to, but are not limited to, perform the following tasks:

  • Raise health and safety concerns, complaints, and violations to which the employer must respond;
  • Review policies in place required under the HERO Act or workers compensation law relating to occupational safety and health and provide feedback;
  • Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, regulation, or other directive;
  • Participate in any site visit by any government entity responsible for enforcing safety and health standards (unless otherwise prohibited by law);
  • Review any report filed by the employer related to the health and safety of the workplace; and
  • Regularly schedule a meeting (up to 2 hours) during work hours at least once per quarter.

The workplace safety committee provisions of the Act will become effective November 1, 2021.

Prohibition Against Retaliation

Employers are prohibited from discriminating, threatening, retaliating, or taking adverse action against employees for exercising their rights under the HERO Act or under a Prevention Plan, reporting violations of the HERO Act or a Prevention Plan, participating in the workplace safety committee, or refusing to work when they believe in good faith that such work exposes them to an unreasonable risk of exposure to an airborne infection due to working conditions that do not meet the HERO model standards or other governmental standards (provided that the employer is notified of, or should be aware of, inconsistent working conditions and the employer fails to cure the conditions).

Penalties for Non-Compliance

Employers who fail to comply with provisions of the HERO Act may be subject to the following penalties:

  • Civil penalties imposed by the NYDOL of no less than $50 per day for the failure to adopt a Prevention Plan and between $1,000 – $10,000 for the failure to abide by an adopted Prevention Plan (civil penalties increase if the NYDOL finds the employer has violated the Act in the preceding 6 years).
  • The NYDOL may order other appropriate relief, including enjoining the conduct of any person or employer.
  • Employees may bring civil suit seeking injunctive relief against an employer for alleged violations of the Prevention Plan that causes a substantial probability of death or serious physical harm to the employee. Before bringing the civil action, the employee must notify the employer of the alleged violation and provide the employer 30 days after being notified to cure the violation (unless the employer demonstrates an unwillingness to cure the violation in bad faith). A Court may award a prevailing employee up to $20,000 in liquidated damages and reasonable attorney’s fees, unless the employer proves that they had a good faith basis to believe the established health and safety measures complied with the applicable airborne infectious disease standards.

Employer Action

Employers with worksites located in New York State must:

  • Adopt the Model Prevention Plan, an industry-specific Model Prevention Plan, or an Alternative Prevention Plan that meet or exceed the model standards by August 5, 2021.
  • Distribute the Prevention Plan to employees within 30 days of adopting a plan (no later than September 4, 2021), post the plan at worksites, and include the plan in any employee handbook.
  • Be prepared to accommodate a workplace safety committee in accordance with the Act (only for employers with 10+ employees).

Sequoia’s Return to Work: Now more than ever, employers need to be careful to monitor and protect against the potential of COVID-19 at the workplace. The New York requirements demonstrate the potential for employers to have additional legal exposure, which is why it is best to have clear return to work policies and COVID-19 tracking mechanisms in place. The tracking and resource capability of Sequoia’s Return to Work Center can provide a streamlined solution to address these new challenges and help your business more confidently stay compliant. Please reach out to your Sequoia Client Service team, or connect with them directly in HRX, to learn more about how Return to Work Center can assist you to stay compliant.

Additional Resources

Emerald Law – Emerald is a Senior Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music, and writing non-fiction.