NY HERO Act Update: Deadline to Distribute and Post Safety Plan Days Away

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Seyfarth Synolsis: The deadline for employers to distribute their airborne disease prevention safety plan and post the plan in the workplace is approaching. 

As previously reported, the New York Department of Labor has published general and industry-specific model disease prevention protocols under the New York HERO Act.  Employers were required to either adopt one of the DOL’s models or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.

Now, employers must distribute the protocol to all of their employees.  Technically, the statute calls for this to be done by September 4.  But because that is a Saturday, and the next weekday (Monday, September 6) is Labor Day, employers arguably have until September 7 to distribute the plans.

Although the statute requires that the notice be in English and any other language identified by an employee as their primary language, employers can satisfy their obligation by distributing the English version until the DOL publishes non-English versions.  Thus far, the only non-English version the DOL has published is Spanish (available here and here).  As such, employers with Spanish-speaking employees should use those versions as appropriate.

Employers must also post the safety protocol at each worksite “in a visible and prominent location” within 30 days of adopting their respective safety protocol.  Employers must include the protocol in any handbook it provides to its employees.  (Doing so will presumably satisfy the need to provide the protocol to newly-hired employees if the employer provides the handbook to new employees at the time of hire.)

Finally, it remains important to bear in mind that that the current requirements pertain only to adoption and circulation of safety plans.  Because no current airborne safety emergency has been declared (notwithstanding the continued threat posed by COVID-19 and the Delta variant), employers are not currently required to activate their plans.

Employers should continue working with counsel to ensure compliance with the provisions of the HERO Act, particularly regarding their distribution and posting requirements for workforces that speak languages other than English.

Seyfarth will continue to monitor developments in this space and provide updates when available.

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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