July 13, 2021
Guidance issued by the New York Department of Labor provides employers with essential details and timelines for rolling out the infectious disease exposure prevention plan required by the HERO Act.
New York recently enacted amendments clarifying employer obligations under the HERO Act. As previously discussed, the HERO Act and its clarifying amendments require all private employers to adopt an infectious disease exposure prevention plan consistent with the New York Department of Labor (“DOL”) model standard within 30 days after the model standard is published.
On July 6, 2021, the DOL published its airborne infectious disease exposure prevention standard and model plans. Accordingly, employers have until August 5, 2021 to adopt an infectious disease exposure prevention plan.
The DOL’s standard generally discusses the HERO Act’s requirements and the basics for the required written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious disease. The DOL’s standard identifies a number of exposure prevention controls based on the types and level of exposure risks employees have during all activities performed at the employer’s worksite. The types of exposure prevention controls employers must adopt include such things as health screenings, face coverings, physical distancing, and various hygiene and housekeeping procedures.
The DOL’s standard also discusses when and how an employer will be required to implement the plan. Significantly, while the DOL’s standard requires all employers to adopt a written plan and publish it to their workforce, such plans do not need to be implemented unless and until “a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health[.]” The DOL notes on its website that “as of the date of this writing no designation has been made and plans are not required to be in effect.”
In the event the Commissioner of Health designates an airborne infectious disease as presenting a serious risk of harm to the public health, the DOL’s standard requires employers to:
The DOL’s standard ostensibly was drafted to take into account the possibility of preemption by any similar standards adopted by the federal Occupational Safety and Health Administration (“OSHA”). The DOL’s standard does not apply to any employee who is covered by a temporary or permanent standard adopted by OSHA setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases, including OSHA’s current Emergency Temporary Standard: COVID-19 Healthcare effective June 21, 2021, which applies to certain health care services employers.
Consistent with the HERO Act’s requirement and the DOL’s standard, the DOL also published a generally applicable model plan for all employers, as well as model plans specific to the following industries:
The model plans require employers to identify items, such as the exposure prevention controls, which the employer will be implementing and the types of personal protective equipment which will be available in the event that the plan is implemented. The model plans also require employers to designate responsible supervisors, and include expansive language prohibiting retaliation.
As noted in our prior alerts, employers are not required to adopt the model plan for their industry. However, any alternate plan an employer adopts must meet or exceed the DOL’s standard, and must be adopted pursuant to an agreement with any collective bargaining representative or with the “meaningful participation” of unrepresented employees for all aspects of the plan. The HERO Act does not require employers to submit their adopted plans for approval to the DOL or to any other entity.
Private employers in New York now must comply with several key deadlines following the DOL’s published standard and model plans, including:
Additionally, as previously discussed, beginning November 1, 2021 employers must permit the creation of a workplace safety committee as required under the HERO Act. The DOL has yet to publish any guidance regarding this requirement.
While employers do not need to implement their adopted disease exposure prevention plan at this time, employers must take initial steps now to comply with the HERO Act’s requirement to adopt a plan and to publish it to their workforce. Employers should remain in contact with counsel over the next month to ensure their adopted plan complies with the HERO Act and the DOL’s model standard.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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