NY Department of Labor Publishes Model Employment Protocols in Accordance with the NY HERO Act to Prevent Disease

As we recently blogged, New York recently enacted the New York Health and Essential Rights Act (“HERO Act”), which imposes new health and safety standards and obligations on employers throughout the State.  On June 11, 2021, the Governor amended the HERO Act to clarify certain obligations and deadlines (the “Amendment”).

As required by the HERO Act, on July 6, 2021, the New York Department of Labor (“NYDOL”) published: (1) the Airborne Infectious Disease Exposure Prevention Standard (the “Standard”); (2) a Model Airborne Infectious Disease Exposure Prevention Plan; and (3) eleven (11) industry-specific model disease prevention plans.  The Standard and model plans can be found here. Per the Amendment, New York employers of all sizes have until August 5, 2021 to either adopt the State’s model plan or establish their own, which must meet or exceed the State’s requirements. Within thirty (30) days of the adoption date, employers must provide the adopted model plan, or equally stringent plan, to their employees.

The Standard and the model plans are designed to, “protect employees against exposure and disease during an airborne infectious disease outbreak.” Further, the model plans address exposure controls, housekeeping, infection response, training and information, plan evaluations and retaliation protections.

While New York employers are required to adopt the model plan or establish their own plan within the timeframe above, such plans only go into effect when “an airborne infectious disease is designated by the New York State Commissioner of Health [(the “Commissioner)] as a highly contagious communicable disease that presents a serious risk of harm to the public health.” The Standard sets forth various steps employers must take once an airborne infectious disease is designated by the Commissioner as presenting a serious risk of harm to the public health. Despite the ongoing nature of the COVID-19 pandemic, at this time, the NYDOL’s website states that no such designation has been made and “plans are not required to be in effect.” Employers should review the Standard and the applicable model plan(s) to ensure compliance with all obligations under the HERO Act. Guidance regarding workplace safety committees is expected to be forthcoming.