REGULATIONS ISSUED IMPLEMENTING NY HERO ACT
September 3, 2021
On May 5, 2021, the New York Health and Essential Rights Act (NY HERO Act) was signed into law, and requires employers to adopt and implement new workplace health and safety plans to provide protection during potential future airborne infectious disease outbreaks.
On August 5, 2021, the New York Department of Labor (NYDOL) in collaboration with the New York Department of Health, issued an Emergency Regulation and Proposed Final Regulation, available here. Under the Hero Act and final regulations, each employer must establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in the event of an outbreak of an airborne infectious disease. Employers may adopt either: i) the NYDOL’s Model Airborne Infectious Disease Exposure Prevention Plan, available here; ii) one of the seven industry specific model plans, which cover the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation (automobiles), and retail; or iii) a plan developed by the employer (as long as it meets the requirements). These plans apply to all “employees” as defined by the New York State HERO Act, which means any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status, and shall include part-time workers, independent contractors, domestic workers, and other temporary and seasonal workers.
Under the Act, employers were also required to: i) adopt an exposure plan (NYDOL Model, industry specific, or their own plan); and ii) designate a supervisory official by August 5, 2021. This official will be responsible for implementing the plan in the event an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. By September 4, 2021, employers are required to provide a copy of the adopted airborne infectious disease exposure prevention plan to all employees and post the plan in a visible and prominent location within each worksite.
Finally, we will note that even though NYDOL and NYDOH recognize that the COVID-19 pandemic is ongoing, no official designation of an airborne infectious disease event has been made with regard to COVID-19. So while employers are required to adopt a plan, and provide that plan to their employees under the NY Hero Act, employers are not yet required to implement these plans.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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