On September 6, 2021, New York Governor Kathy Hochul designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York Health and Essential Rights (HERO) Act. This designation means that all New York employers must activate the workplace safety plans that they developed under the HERO Act standards.

IN DEPTH

As McDermott previously reported, the workplace safety plan can be based on the model plan jointly developed by the New York State Department of Health (NYSDOH) and the New York State Department of Labor (NYSDOL). Employers can also develop their own plans, subject to certain minimum requirements discussed below.

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; and

• Provide and require that employees use personal protective equipment (PPE), as required or recommended by the NYSDOH. The employer is responsible for ensuring that the PPE fits the employee and that the employee receives training on how to use the PPE. The employer must also ensure that PPE is provided, used and maintained in a sanitary and reliable condition.

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

Now that COVID-19 has received a HERO Act designation, employers must take the following steps:

• 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;

• Finalize and promptly activate the worksite exposure prevention plan;

• Provide a verbal review of the plan with employees; and

• 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. The plan must also be posted at the worksite and be accessible to employees during all work shifts.

In addition to these action items, employers must provide employees with a copy of the written safety plan within 15 days of reopening after closure, or within 30 days of adopting the plan. Since Governor Hochul’s COVID-19 designation went into effect immediately, employers should aim to distribute the written safety plan by October 6, 2021. New employees must also be provided with a copy of the safety plan upon hire.

COORDINATION WITH OSHA’S EMERGENCY TEMPORARY STANDARD

The HERO Act’s requirements do not apply to employers covered by the US Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard for the healthcare industry.

MULTI-STATE EMPLOYERS

The HERO Act’s requirements apply to all New York-based worksites, even if the employer is based outside of New York. It does not apply to employees who are telecommuting from their home, even if their home is located within New York State.

NON-COMPLIANCE

Employers who fail to comply with the HERO Act’s requirements may be subject to penalties of $50 per day of non-compliance, plus up to $10,000 for failure to abide by the HERO Act’s requirements.