New York Issues NY HERO Act Standard and Model Plan — A Playbook for the Next Pandemic

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

On July 7, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited new Airborne Infectious Disease Exposure Prevention Standard (the Standard) and model template plan under the NY HERO Act. However, with no current designation for COVID-19 as a “highly contagious communicable disease” by the New York State Commissioner of Health, the model plan is more of a playbook for the next outbreak.

The NY DOL also published various industry-specific model plans for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation and retail sectors, although there is no specific guidance for office-based work.

The model plan generally tracks the now archived/optional NY Forward industry-specific guidance and addresses health screenings, face coverings, physical distancing, hand hygiene and cleaning/disinfection protocols aligned with recommendations by the New York State Department of Health and/or the CDC. The model plan also provides more stringent exposure controls during an outbreak. Employers are required to adopt an airborne infectious disease exposure prevention plan by August 6, 2021, and provide a copy of the plan and post the same in a visible and prominent location within each New York worksite by September 7, 2021.

Employers can choose to adopt the applicable model template plan provided by the NY DOL or establish an alternative plan that meets or exceeds the standard’s minimum requirements. However, employers that choose to develop their own alternative plan — or adopt a different exposure prevention plan — “shall adopt such plan pursuant to an agreement with the collective bargaining representative, if any, or with the meaningful participation of employees where there is no collective bargaining representative, for all aspects of the plan, and such plan shall be tailored and specific to the hazards in the specific industry and worksites of the employer.” If adopting the NY DOL’s template model plan, employers will need to complete/insert applicable employer-specific information and identify advanced exposure controls during a designated outbreak.

Notably, the state guidance emphasized that while employers must adopt plans as required by the law, there is no requirement to implement them until an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease presenting a serious risk of harm to the public health. Currently, no designation has been made and plans are not required to be in effect, which is likely due to New York’s high vaccination rate and low transmission. This may change without advance notice if COVID-19 variants become more concerning, or in regards to other future pandemics.

Employers should think of the model plan as an employer’s “pandemic playbook,” which will be readily available to implement in the event employers need to activate it upon designation by the NYS Commissioner of Health.

That said, nothing prevents employers from implementing return-to-work plans/policies to communicate the preventative health measures that the employer is continuing to take during the pandemic and to clarify New York’s current mask mandate for unvaccinated individuals and for those whose vaccination status is unknown.

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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