On July 7, 2021, the New York Department of Labor (DOL) published the NY Hero Act airborne infectious disease exposure prevention standard (the Standard) and industry-specific model airborne infectious disease exposure prevention plans as required under the NY Hero Act (the Act). The Act requires New York employers to implement extensive new workplace health and safety protections in response to a “highly contagious communicable disease” as designated by the New York State Commissioner of Health (Designation). Notably and significantly, while the NY Department of Health continues to deal with COVID-19 and a risk still exists, the DOL clarified that there is no current Designation for COVID-19 by the Commissioner and therefore, no New York employer is required to put a plan in effect at this time due to COVID-19.
The Standards make clear that they only apply in relation to “an airborne infectious agent or disease designated by the Commission of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and 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 diseases.”
Therefore, all that is required at this time for a New York employer is:
- adopt the industry-specific template model policy as published by the DOL or establish an alternative plan that meets or exceeds the Standard’s minimum requirements no later than August 6, 2021,
- provide a copy of the adopted airborne infectious disease exposure prevention plan to all employees and post the same in a visible and prominent location within each worksite within 30 days from adoption, and
- provide a copy of the adopted plan to all new employees within 30 days from adoption.
The Standards and plans themselves include requirements for employee health screenings, face coverings, personal protective equipment (PPE), social distancing, and cleaning and disinfecting protocols. But again, these are only required in the event the Commission makes a Designation. That said, employers are still able to implement these controls and otherwise continue to adhere to New York’s archived guidance for the applicable industry if desired.
Upon adopting the relevant plan, and after distributing the plan to employees, the Standards contemplate that the plan should be reviewed and updated whenever necessary to reflect new or modified tasks and procedures affecting occupational exposure and to reflect new or modified employee assignments. This way, in the event a Designation is made, employers can swiftly implement all that is required to ensure a safe worksite and “promptly activate the worksite exposure prevention plan.”