The New York Department of Labor finally issued Model Safety Plans and Standards for airborne infectious diseases. All employers, regardless of size and with a worksite in New York, must adopt a safety plan by August 5, 2021, and must post, distribute and include the plan in their handbooks to all employees and new hires by September 5, 2021.

The New York Health and Essential Rights Act (HERO Act), which was signed into law on May 5, 2021, and amended shortly thereafter, is one of the nation’s first state laws governing prevention of airborne infectious diseases in the workplace.

The NYDOL released a general Model Safety Plan for all employers and industry-specific model plans for Construction, Food Services, Manufacturing and Industrial, Delivery Services, Private Transportation, Emergency Response, Private Education, Personal Services, Domestic Workers, Retail and Agriculture. Employers must adopt one of the NYDOL Model Plans and Standards or their own more stringent plan, which must contain certain minimum controls, standards and requirements.

The model standards will address minimum requirements for preventing exposure to airborne infectious diseases in the workplace such as:

• employee health screenings;
• face coverings;
• required personal protective equipment (PPE);
• accessible hand hygiene stations in the workplace;
• regular cleaning and disinfecting of shared equipment and frequently touched surfaces, and other surfaces and washable items in high-risk areas;
• effective social distancing for employees and consumers/customers;
• compliance with mandatory/precautionary orders of isolation or quarantine issued to employees;
• compliance with applicable engineering controls such as proper airflow or exhaust ventilation;
• designation of one or more supervisory employees to enforce compliance with the prevention plan and any other federal, state or local guidance related to avoidance of spreading an airborne infectious disease;
• compliance with any applicable laws, rules, regulations, standards or guidance on notification to employees regarding relevant state and local agencies of potential exposure at the worksite.

 If an employer develops an alternative prevention plan of their own, the employer is required to either develop the plan pursuant to a collective bargaining agreement (if applicable), or where there is no collective bargaining agreement, with “meaningful participation of employees.”

The HERO Act adds two new sections to the New York Labor Law:

1. Section 218-b, governing airborne infectious disease prevention plans and standards; and
2. Section 27-D, governing joint management workplace safety committees.

New York Labor Law Section 218-b

The first section of the HERO Act pertains to prevention of occupational exposure of airborne infectious diseases in the workplace. This section applies to all private employers in New York State.

The HERO Act covers and protects “employees,” which broadly encompasses full-time and part-time workers, independent contractors, domestic and homecare workers, day laborers, farmworkers, temporary and seasonal workers, indirectly those working for staffing agencies, contractors or subcontractors on behalf of an employer at any individual worksite. It also encompasses individuals delivering goods or transporting people on behalf of the employer and those working for digital applications or platforms.

New York Labor Law Section 27-D

The second section of the HERO Act establishes a requirement for private employers with 10 or more employees to permit the creation and administration of joint labor-management workplace safety committees. This section is effective November 30, 2021. The section allows but does not require an employer to establish such a committee. The full scope of employers’ obligation to establish a committee and what triggers that obligation is not clear and awaits regulatory guidance.

If a workplace safety committee is established, it must be composed of employee and employer designees, and at least two-thirds must be non-supervisory employees. Employee members must be selected by and from among non-supervisory employees. If a collective bargaining agreement is in place, the collective bargaining representative is responsible for selecting employee members.

The law requires covered employers to permit safety committee designees to attend training, without loss of pay, on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health. The law states that such training must not be longer than four hours.

If an employer already has a workplace safety committee that complies with the other requirements of Section 27-D, the employer is not required to create an additional safety committee to comply with the law.

Tips for Employers

1. Adopt a Safety Plan and Standards by August 5 and post and include them in your employee handbook by September 7.
2. Make sure your plan complies with applicable NYDOL minimum standards.
3. Designate a supervisor or manager to coordinate and implement applicable programs/for your worksites.
4. Review applicable CDC, State and OSHA guidelines. For example, the OSHA general COVID guidelines for all employers and the new OSHA emergency COVID standards for health care employers issued on June 7, 2021. These contain helpful information about the prevention of airborne infectious diseases in the workplace. For guidance, consult with a professional.
5. Do not permit or condone retaliation against employees who complain or refuse to work due to a good-faith belief of an unreasonable risk of exposure to an airborne infectious disease at a worksite.
6. Promptly respond and attempt to address any employee complaints about any alleged exposure to airborne infectious diseases in the workplace.
7. Begin to address compliance with upcoming safety committee requirements.