As we previously reported, on May 5, 2021, Governor Andrew Cuomo signed the New York Health and Essential Rights Act (“HERO Act” or the “Act”) into law. On July 6, 2021 the New York State Department of Labor (“NYSDOL”) published its Airborne Infectious Disease Exposure Prevention Standard (the “Standard”), a General Model Airborne Infectious Disease Exposure Prevention Plan, and several Industry Specific Model Exposure Prevention Plans (“Model Plan” or Model Plans”) as required by the HERO Act.
Below is a summary of the new information contained in these publications.
Required Contents of an Exposure Plan
The HERO Act and its amendments require employers adopt or develop a compliant exposure prevention plan 30 days after the NYSDOL published its Standard and Model Plans. That means employers have until August 5, 2021 to adopt one of the Model Plans or develop their own alternative plan that complies with the HERO Act’s requirements. The Standard sets out the baseline exposure controls a compliant plan must contain.
A compliant exposure prevention plan must provide for: health screenings; face coverings; physical distancing; hand hygiene facilities; cleaning and disinfection; and personal protective equipment. The exposure plan must also incorporate any exposure controls outlined in the applicable industry specific model exposure prevention plan. The Model Plan also requires employers to determine when certain “advanced controls” might become necessary. Potential advanced controls include: elimination of certain activities, additional engineering controls, administrative controls such as additional training or signage, and the provision of additional protective equipment.
The NYSDOL also encourages employers to update their exposure plans in response to guidance from the New York State Department of Health and the Centers for Disease Control that may be specific to particular communicable diseases. Additional industry-specific requirements can be found in the applicable Model Plan.
Implementing an Exposure Prevention Plan
If an employer chooses to adopt its own alternative plan, the Standard requires the plan be adopted pursuant to an agreement with the appropriate collective bargaining representative or, if there is no collective bargaining representative, with meaningful participation of employees. The Standard does not provide further guidance on the exact type and degree of participation required. The HERO Act authorized the formation of joint labor-management workplace safety committees. However, it is not clear they are intended to participate in the initial development of an exposure prevention plan. The provisions of the Act requiring employers to permit formation of workplace safety committees do not come into effect until November 1, 2021 and further regulations regarding the committees’ role are still forthcoming.
Once adopted, employers must post their chosen exposure prevention plan in the workplace and provide the plan to employees by September 4, 2021. Importantly, an exposure prevention plan need only be activated when the New York State Commissioner of Health designates a highly contagious communicable disease as presenting a serious health risk. The NYSDOL notes that currently no such designation has been made with respect to COVID-19 or any variants thereof.
In the event that the Commissioner of Health makes such a designation, employers are expected to review their chosen plan and update it if necessary to account for information and guidance from federal, state, and local governments. Once the plan is finalized, employers are required to conduct a verbal review of their policies, employee rights under the HERO Act, and their exposure prevention plan with their employees. The verbal review may be conducted in person or remotely depending on which manner is most suitable for exposure prevention. While the plan is in effect, employers must also designate one or more supervisory employees to enforce compliance with the exposure prevention plan.
Anti-Retaliation Clarification and Record Keeping Requirements
One of the more controversial provisions of the HERO Act was the Act’s prohibition of retaliation against employees who refuse to work where: (i) such employee reasonably believes that work presents an unreasonable risk of exposure due to conditions inconsistent with the requirements of the Act or Standard; (ii) the employee notified their employer of the inconsistent condition; and (iii) the employer failed to cure an inconsistent condition.
The Standard provides clarification on what type of notification is sufficient to trigger this provision, and requires that employers maintain records of such communications. The NYSDOL states that a notification may be made verbally or by writing in any format including electronic communications. Additionally, employers must maintain records, to the extent they exist, of communications between employees and employers regarding potential risk of exposure during a serious risk disease designation by the Commissioner of Health for two years after the conclusion of the designation.
Private employers in New York should carefully review the Standard, the General Model Plan, and any applicable Industry-Specific Model Plan before deciding whether to adopt a Model Plan or develop their own compliant alternative plan.
We will continue to monitor this legislation and will provide further updates regarding the HERO Act’s implementation as they become available.
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*Myles Moran is a law clerk in the firm’s New York office.