Update: On September 6, 2021, New York Governor Kathy Hochul designated COVID-19 as a disease to be covered by the NY HERO Act. McDermott has provided updated guidance, available here.
On July 6, 2021, the New York State Department of Labor (NYSDOL) published its Airborne Infectious Disease Exposure Prevention Standard (Standard), as required under the New York Health and Essential Rights (HERO) Act. Under the Standard, employers with worksites located in New York are required to either adopt the NYSDOL’s model exposure prevention plan or develop their own alternative prevention plan no later than August 5, 2021, and circulate their plan to employees no later than September 4, 2021.
Employers must adopt a prevention plan but are not required to implement the plan until the New York State Commissioner of Health (Commissioner) designates an airborne disease as a “highly contagious communicable disease that presents a serious risk of harm to the public health.” As of the date of this alert, the Commissioner has not issued any such designation so employers need not implement their plans just yet.
HERO ACT SIGNED INTO LAW
On May 5, 2021, New York Governor Andrew Cuomo signed the HERO Act into law, which mandates that employers adopt a number of workplace safety measures in order to prevent occupational exposure to airborne infectious diseases. (Please see our previous alert for a detailed summary of the HERO Act’s provisions.)
NYSDOL STANDARDS PUBLISHED
The NYSDOL published the Standard on July 6, 2021, and it applies to all employers with worksites located in New York State. By August 5, 2021, employers are required to either (1) adopt NYSDOL’s model exposure prevention plan or (2) develop their own alternative prevention plan which meets or exceeds the requirements of the model plan. Employers will then have until September 4, 2021, to make their written prevention plan available to their employees in both English and their employees’ primary language(s) (if applicable).
In addition to the model exposure prevention plan, the NYSDOL released industry-specific templates for the following 11 industries: Agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation and retail. The NYSDOL’s Standard and industry-specific templates can be found here.
While employers are required to adopt a prevention plan by August 5, 2021, they are not required to implement the plan until the Commissioner designates an airborne disease as a “highly contagious communicable disease that presents a serious risk of harm to the public health.” Because COVID-19 has not been designated as such a disease as of the date of this update, there is no requirement for employers to implement their plans at this time. Given the spread of COVID-19 variants, however, that may change in the future.
KEY EXPOSURE PREVENTION PLAN REQUIREMENTS
Employers are required to establish a written prevention plan containing, among other things, the following key exposure controls:
Perform health screenings at the beginning of each workday and limit exposure to employees with any symptoms of an airborne infectious disease. Employers must also follow protocols for testing, isolation and quarantine before allowing employees to return to the workplace;
Implement physical distancing requirements to keep employees at least six feet apart;
Provide appropriate face coverings to employees and require face coverings when physical distancing cannot be maintained;
Provide either adequate handwashing facilities or hand sanitizing facilities/supplies to employees;
Implement an appropriate plan for cleaning and disinfecting frequently touched surfaces, shared tools, equipment, workspaces and common areas;
Provide and require that employees use personal protective equipment (PPE), as required or recommended by the New York State Department of Health (NYSDOH). The employer is responsible for ensuring that the PPE fits the employee, that employees receive training on how to use the PPE and that PPE is provided, used and maintained in a sanitary and reliable condition.
Employers operating in one of 11 specified industries above must also consider and incorporate relevant requirements from the industry-specific templates posted on the NYSDOL’s website.
Upon request, employers must make the exposure prevention plan available to all employees, employee representatives, collective bargaining representatives, independent contractors, the NYSDOL and the NYSDOH.
ADDITIONAL REQUIREMENTS FOR ALTERNATIVE PREVENTION PLANS
If an employer chooses not to adopt the NYSDOL’s model prevention plan, it may instead draft its own alternative prevention plan. Employers choosing to do so must (1) meet the minimum standards of the model plan and (2) develop the plan in conjunction with the employees’ collective-bargaining representative, or, if not applicable, then with “meaningful participation” of employees.
Next Steps for Employers
By August 5, 2021, employers with worksites located in New York must either adopt NYSDOL’s model exposure prevention plan or develop their own alternative prevention plan.
By September 4, 2021, employers must provide their written prevention plan to their employees in both English and their employees’ primary language(s) (if applicable).
If and when the Commissioner designates an airborne disease as a “highly contagious communicable disease that presents a serious risk of harm to the public health,” employers must activate their prevention plan. COVID-19 has not been designated as such a disease at this time.
Your McDermott attorney can help you with adopting NYSDOL’s model prevention plan or assist you with drafting a customized alternative prevention plan. We are also available to answer any of your questions related to the NYSDOL’s Standard.