New York State Department of Labor Releases Updated New York HERO Act FAQs

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As we previously reported, as of September 6, 2021, all New York HERO Act (“HERO Act”) airborne infectious disease exposure prevention plans (“Safety Plans”) must be implemented due to COVID-19 being designated as a serious public health risk under the HERO Act. This designation was recently extended until at least October 31, 2021, per the New York Commissioner of Health’s announcement.

To help employers comply with the HERO Act’s requirements, the New York State Department of Labor (“NYSDOL”) has published a variety of guidance materials, such as model Safety Plans, including Information and Frequently Asked Questions (“FAQs”) that were recently updated. The new FAQs contain important changes for employers concerning Safety Plans, as required under Section 1 of the HERO Act, as well as the HERO Act’s joint labor-management workplace safety committee requirements under Section 2, effective November 1, 2021. FAQs are now available in 11 languages on the NYSDOL’s HERO Act website.

Safety Plan Updates (Section 1 of the HERO Act)

The updated FAQs focus on the requirements imposed by Section 1 of the HERO Act, which is the portion of the law mandating employers to implement Safety Plans when an infectious disease is designated as a serious risk. The FAQs now state that employers must implement HERO Act Safety Plans specifically for COVID-19 due to the New York Commissioner of Health’s designation. Importantly, the updated FAQs eliminate certain guidance contained in the previous FAQs regarding alternative Safety Plans. As a reminder, employers who do not adopt a model Safety Plan as provided by the NYSDOL, and instead create their own Safety Plan, must engage their employees in meaningful participation to develop such an alternative plan.

This left the question open as to whether minor (or more substantial) alterations to a model Safety Plan could potentially convert such plan into an alternative Safety Plan, and thus require meaningful participation from employees. The previous FAQs stated that “amendments to such [model Safety Plans] that go beyond the open fields of such template likely do constitute an ‘alternative plan’ requiring employee review and/or participation.” This language has been removed from the current FAQs. Accordingly, employers should still be cautious in making any modifications to their Safety Plans outside of the open fields where they are required to input information, such as in the Physical Distancing and Engineering/Administrative Controls sections.

According to the updated FAQs, employers should no longer be on the lookout for any additional model Safety Plans. As of this writing, the NYSDOL has released a general model Safety Plan in English as well as in Spanish, and 11 industry-specific model Safety Plans. The previous FAQs stated that the NYSDOL will consider additional templates as such feedback is received, but this language has been removed from the updated FAQs.

Additionally, the updated FAQs provide that employers who have a workplace safety committee in place under Section 2 of the HERO Act must review any Safety Plan modifications made after November 1, 2021 with such workplace safety committee.

Workplace Safety Committee Updates (Section 2 of the HERO Act)

While these updated FAQs are, per their new title, focused on Section 1 of the HERO Act, they also provide some clarity regarding Section 2 – the workplace safety committee portion of the HERO Act. Effective November 1, 2021, Section 2 requires private employers with 10 or more employees to allow employees to establish and administer a joint labor-management workplace safety committee.

The previous FAQs created some confusion, as certain areas of the guidance indicated that employers with 10 or more employees were required to establish such workplace safety committees, not merely allow the employees to establish them. The updated FAQs resolve this confusion by now matching the statutory language that employers need only allow employees to create such committees. Thus, consistent with legislative language, there is no affirmative HERO Act requirement for employers to create workplace safety committees.

The updated FAQs also explicitly provide that the NYSDOL will provide additional guidance regarding Section 2 of the HERO Act prior to November 1, 2021. We will provide updates as they become available.

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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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