New York HERO Act

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As we reported previously, Governor Cuomo signed the Health and Essential Rights Act (the HERO Act) into law. The HERO Act requires employers to adopt an airborne infectious disease exposure prevention plan to protect employees during any future disease outbreak.

On July 6, 2021, the New York Department of Labor (DOL) published the HERO Act Airborne Infectious Disease Exposure Prevention Standard (the Standard); the Model Airborne Infectious Disease Exposure Prevention Plan (the Model Plan); and various industry-specific model plans, including for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail industries.

Who is Covered?

All private employers with a physical location in New York State.

What is Required?

  • By Aug. 5, 2021, employers are required to either adopt the Model Plan or create their own plan, which must meet or exceed the minimum requirements of the Model Plan.
  • By Sept. 4, 2021, employers must notify and make their plan available to all employees. The plan must also be provided to new hires and be provided within 15 days after reopening from a closure due to an airborne infectious disease. However, such plans need not be put into practice until there is a declaration of a current airborne disease threat by the New York Department of Health (DOH), and no such threat has been currently declared.
  • By Nov. 1, 2021, employers with 10 or more employees must begin allowing employees to form joint labor-management workplace safety committees, with at least two-thirds of the committee’s membership consisting of nonsupervisory employees.

The Standard establishes the minimum obligations for what employers need to include in their exposure prevention plan: (1) health screening, (2) face coverings, (3) physical distancing, (4) hand hygiene facilities, (5) cleaning and disinfection, and (6) availability of personal protective equipment. The Standard also has an anti-retaliation provision stating that no employer shall discriminate, threaten, retaliate against or take adverse action against any employee for exercising their rights under the plan, reporting a violation of the plan, reporting an airborne infectious disease exposure concern or refusing to work where the employee reasonably believes in good faith that such work exposes them to an unreasonable risk of exposure to an airborne infectious disease.

The Model Plan must also include: (1) a list of supervisory employees at each worksite; (2) exposure controls during a designated outbreak; (3) housekeeping during a designated outbreak; (4) infection response during a designated outbreak; (5) training and information during a designated outbreak; (6) plan evaluations during a designated outbreak; and (7) retaliation protections and reporting of any violations. For example, in their plan, employers must address exposure controls, such as a stay at home policy, health screening, face coverings, physical distancing, hand hygiene, cleaning and disinfection, respiratory etiquette, and special accommodations for individuals with added risk factors. Employers must also detail the training all personnel will receive regarding the plan, including with respect to, among other things, the infectious agent and the disease(s) it can cause; the signs and symptoms of the disease; how the disease can be spread; an explanation of the exposure prevention plan; the activities and locations at the worksite that may involve exposure to the infectious agent; and the use and limitations of exposure controls.

What Should Employers Do Now?

Employers should promptly develop the required prevention plan, provide each employee a copy of the plan, and post the plan on an intranet or at a prominent location in the workplace. Finally, employers should designate one or more supervisory employees at each worksite to ensure compliance with the plan’s requirements.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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