9-9-21 COVID-19 Client Alert NYS HERO ACT EMPLOYER OBLIGATIONS TRIGGERED

Posted on September 09, 2021

Following Governor Hochul's remarks on September 6, 2021 regarding the State's continued fight against COVID-19, the New York Commissioner of Health officially designated COVID-19 a "highly contagious communicable disease" under the New York Health and Essential Rights Act (the "HERO Act"). As outlined in our prior alerts, the HERO Act required covered employers to adopt an airborne infectious disease exposure prevention plan on or before August 5, 2021, by using the State's model plans or adopting a plan that met or exceeded the model requirements. The State's model plans can be found at https://dol.ny.gov/ny-hero-act. The adopted plans were required to be distributed to all workers within thirty (30) days of adoption or September 5, 2021, whichever was earlier. However, at the time that the HERO Act requirements were initially issued, the Department of Labor specifically indicated that there was no current designation in place which would trigger implementation of a plan's requirements. However, with the Commissioner's new designation, employers are now required to implement their airborne infectious disease exposure prevention plan.

In order to implement the plan, employers must verbally inform all employees of the existence and location of the plan, the circumstances it can be activated, the infectious disease standard, the employer's policies under the plan and the employee's rights. More specifically, the regulations further specify that all personnel must receive training which covers all elements of the plan and 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 exposure prevention plan; the activities and locations at the worksite that may involve exposure to the infectious disease; the use and limitations of exposure controls and a review of the standard, including employee rights provided under the Labor Law. This verbal review can be conducted in person or through telephone, electronic or other means. The final plan must also be posted and a copy of the plan must be distributed to all employees (even if the plan was previously distributed upon adoption).

Employers must also designate one or more supervisory employees to enforce compliance with the plan. Notably, the model plan requires certain minimum controls to be implemented, including but not limited to, health screenings at the beginning of each shift, a stay at home policy for those with COVID-19 symptoms, face coverings throughout the workday to the greatest extent possible, physical distancing, and special accommodations for individuals with added risk factors. Additional controls, as specified in the plan, must also be considered.

The Commissioner's designation is in effect until September 30, 2021, at which time the Department of Health will review the level of COVID-19 transmission in the State to determine whether to continue the designation. The State has provided no additional guidance as to the designation, such as a specific date by which the plans must be implemented. Accordingly, we recommend that employers take immediate steps to implement their plans, including conducting all necessary training.

Please contact a member of the Labor & Employment group with any questions.

Lorisa D. LaRocca