[co-author: Katherine Szabo]

On September 6, 2021, New York State Governor Kathy Hochul announced that the New York State Commissioner of Health has designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under the New York Health and Essential Rights Act (HERO Act), thus requiring all employers to implement workplace safety plans to prevent workplace airborne infectious disease outbreaks. The HERO Act mandates extensive new workplace health and safety protections. Under the law, all employers are required to adopt a workplace safety plan, and implement it for all airborne infectious diseases designated by the New York State Department of Health. Employers can adopt a model safety plan as crafted by the New York State Department of Labor, or develop their own safety plan in compliance with HERO Act standards.

Implementing the Prevention Plan

The NY HERO Act sets safety standards for employers who decide to craft their own prevention plans. The New York State Department of Labor also prepared a model plan, including industry specific templates, that employers may adopt. Some of these minimum standards include face coverings, hand hygiene options, physical distancing, cleaning and disinfection, and personal protective equipment.

Now that COVID-19 has been designated as a serious communicable disease under the Act, employers must review and implement their prevention plans, plus make any changes needed to conform with recent health guidance and legal requirements. Employers should verbally communicate their guidelines to employees. Employees should also receive a copy of the plan in either English or their primary language, if available, and employers must ensure that a copy of the plan is accessible during all shifts. For the duration of the designation, employers must review their protocols and regularly monitor the State Department of Health and Centers for Disease Control and Prevention for any further guidance. Supervisory employees should be assigned the responsibility of enforcing compliance with the workplace’s plan.

Statutory Penalties and Employee Protections

Under the Act, employers cannot retaliate against employees who exercise their rights to report violations of the law or prevention plan, report a disease exposure concern, or refuse to work where they would face an unreasonable risk of infection. The Commissioner of Labor may investigate violations and impose fines against employers who fail to create a prevention plan or follow their established guidelines. The Act also grants employees the right to bring a civil action against employers who knowingly violate the prevention plan and place employees at serious risk of harm.

Bottom Line

New York Employers should take this opportunity to review and update their COVID-19 policies and practices and ensure they are up to date with the many changes in this rapidly developing area of the law or risk civil penalties.