New York State has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, which means that employers must now activate their workplace safety plans under the NY HERO Act.

As previously reported (most recently here and here), the New York HERO Act requires employers to adopt and circulate a safety protocol to protect employees against exposure and disease during an airborne infectious disease outbreak.

Until now, employers were required only to adopt a safety plan—either based on a model issued by the Department of Labor or of their own design—and, no later than September 7, distribute the plan to employees.  However, on September 6, during a Labor Day commemoration, Governor Kathy Hochul announced that the State’s health commissioner has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health.  For purposes of the HERO Act, this designation means that employers are now required to activate their plans.

As of the time of publication of this Alert (approximately 10:00 a.m. EDT on September 7, 2021), the websites of the State’s Departments of Health and Labor contain no details of the Governor’s announcement or further guidance for employers.  The precise timing of employers’ obligations in light of this new development remain uncertain.  But employers should nonetheless prepare to implement their safety plans, conduct employee training, and take other steps called for by the applicable protocols. The DOL’s HERO Act web page provides links to model safety plans and other information.

Seyfarth will continue to monitor developments in this space and provide updates when available.