February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Designation of COVID-19 Under New York HERO Act Extended Once Again

On October 31, 2021, the New York State Commissioner of Health continued the designation of COVID-19 as a “highly contagious communicable disease” pursuant to the HERO Act until December 15, 2021.  This means that New York employers must continue to keep in effect the airborne infectious disease prevention plans that they have adopted related to COVID-19.

According to the latest designation, on December 15, the Commissioner “will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation.” A copy of the designation is available here.

It is worth noting that the portions of the HERO Act requiring the adoption and implementation of an airborne infectious disease prevention plan do not apply to “employees covered by any other OSHA standard specifically related to airborne infectious diseases or COVID-19 in particular.”  Presently there is no such general standard in effect for employees, though an emergency temporary standard (“ETS”) related to COVID-19 is currently in place for health care workers, and thus such workers are not presently covered by the prevention plan requirements of the HERO Act.

However, it is anticipated that OSHA will very soon be releasing an ETS regarding vaccination of employees working for employers with 100 or more employees.  It remains to be seen whether or to what extent the OSHA vaccination ETS may impact the applicability of the HERO Act to employers covered by the ETS.  The HERO Act FAQs note that the New York Department of Labor “will update information if and when OSHA does create a standard that applies to any additional employees.”  We will continue to monitor developments in this area and report on any updates.

© 2023 Proskauer Rose LLP. National Law Review, Volume XI, Number 305

About this Author

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour...