New York State Hero Act Update
new requirements for employee protections against airborne disease
Yesterday, Gov. Kathy Hochul announced that the New York State Dept. of Health has designated COVID-19 as an airborne infectious disease for purposes of implementing the NYS HERO Act.
Per DOL regulations, when a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health, each employer shall:
- a. Immediately review the worksite’s exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern;
- b. Finalize and promptly activate the worksite exposure prevention plan;
- c. Provide the verbal review required in paragraph (d) of this section; and
- d. Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees, if available, and
- 1. Post a copy of the exposure prevention plan in a visible and prominent location at the worksite (except when the worksite is a vehicle); and
- 2. Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts.
- e. Employers that utilize a template exposure prevention plan prepared by the Department of Labor shall not be responsible for errors in translations relating to such.
While the designation remains in effect, the employer shall:
- a. Ensure that the worksite’s exposure prevention plan is effectively followed by:
- 1. Assigning enforcement responsibilities in accordance with Labor Law Section 218-b(2)(i), and ensuring that adequate enforcement of the worksite’s exposure prevention plan takes place;
- 2. Monitoring and maintaining exposure controls; and
- 3. Regularly checking for updated information and guidance provided by State Department of Health and the Centers for Disease Control and Prevention concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current State Department of Health or Centers for Disease Control and Prevention recommended control measures.
- b. Designate one or more supervisory employees to enforce compliance with the exposure prevention plan; this standard; and any other federal, state, or local guidance related to preventing the spread of the airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace. No individual who is not a supervisory employee shall have responsibility for overseeing compliance with the requirements of the exposure prevention plan.
As a reminder, the effective date for the HERO Act was July 6, which was when DOL issued template plans and the standard. Employers needed to adopt a plan 30 days later (August 5) and present the plan to employees 30 days after that (September 4). Therefore, regardless of today’s designation, employers should have an adopted plan already. With today’s designation, the previously adopted employer plans will be in effect now for COVID-19.
Click here to view our July article on the NYS Hero’s Act which includes links to templates and other materials.