December 1, 2021

Volume XI, Number 335

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New York HERO Act: All New York Employers under Deadline to Adopt an Airborne Infectious Disease Exposure Prevention Plan

On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (“NY HERO Act”) into law, which mandates extensive workplace health and safety protections against exposure and disease during a future airborne infectious disease (“AID”) outbreak. The State enacted amendments on June 7, 2021, which included amendments directing the New York State Department of Labor (“NY DOL”) to publish industry specific guidance by July 5, 2021 and to require employers to adopt or create an Airborne Infectious Disease Exposure Prevention Plan within 30 days of such publication. In addition, employers with at least 10 employees are required to permit the establishment of safety committees to address safety workplace concerns effective November 1, 2021.

As expected, on July 6th, the NY DOL published the Airborne Infectious Disease Exposure Prevention Standard (the “Exposure Prevention Standard”) and the Model Airborne Infectious Disease Exposure Prevention Plan (the “Model Plan”). In addition, the NY DOL published certain industry specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food service, manufacturing and industry, personal services, private education, private transportation and retail industries.

Accordingly, by August 4th, all New York employers with worksites (of any size) located in New York must either adopt the applicable Model Plan provided by the NY DOL, or establish an alternative plan that meets or exceeds the minimum requirements set forth in the published Exposure Prevention Standard. If an employer develops its own plan or a different exposure plan, it must do so in accordance with a collective bargaining agreement, or if there is no collective bargaining representative, with the “meaningful participation” of employees.

Every plan must include appropriate exposure controls for activities performed at the worksite, including implementing health screenings prior to the beginning of the work day, requiring face coverings (to be provided to the employees at no cost), implementing physical distancing, cleaning and disinfecting worksites, providing hand hygiene facilities and personal protective equipment, if applicable. Plans should also be updated in response to guidance from the New York State Department of Health and the Centers for Disease Control.

Each employer must provide the written Airborne Infectious Disease Exposure Prevention Plan in English or in the primary language of its employees within 30 days after the adoption of the plan (no later than September 3rd), or within 15 days after a period of closure due to an AID. In addition, employers should post the plan in a visible and prominent location within the worksite. Employers that provide employee handbooks should include the Airborne Infectious Disease Exposure Prevention Plan in its handbook, and distribute the plan to newly hired employees, upon hiring. The plan should otherwise be available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the Department of Labor and the Department of Health.

The Airborne Infectious Disease Exposure Prevention Plans must go “into effect” when an AID is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. As noted above, currently there is no AID designation and plans are not required to be in effect.

When an AID is designated by the Commissioner of Health, each employer shall immediately review and update its prevention plan, activate the plan and provide each employee with a written copy of the plan in English or in the primary language of its employees, and post a copy of the plan in a visible and prominent location at the worksite. Once an AID is designated, employers also must conduct a “verbal review” of employer policies and employee rights under the NY HERO Act, including the employer’s exposure prevention plan set forth herein.

It is important to note that the Exposure Prevention Standard prohibits discrimination, retaliation or adverse action taken against any employee exercising their rights under the NY HERO Act, for reporting violations of the plan, reporting any exposure concern, or refusing to work where the employee reasonably believes in good faith that the work creates an unreasonable risk of exposure to the infectious disease.

Additionally, employers with at least 10 employees are required to permit employees to establish and administer a joint labor-management workplace safety committee effective November 1, 2021. These workplace safety committees, which are to be compromised of two-thirds non-supervisory employees will be authorized to perform tasks including but not limited to, raising health and safety concerns, reviewing exposure prevention plan policies, and participating in site visits by any governmental entity responsible for enforcing safety and health standards. Employers that already have workplace safety committees consistent with the above requirements will be exempted.

Failure to comply with the NY HERO Act may result in civil penalties of $50 per day for failing to adopt an appropriate plan and a fine of $1,000-10,000 for failing to comply with an adopted plan. Employees may also bring a civil action seeking injunctive relief against employers alleged to have violated an adopted prevention plan; however, advance notice to the employer of the alleged violation is required. The Court may among other things, enjoin the employers conduct or order the payment of liquidated damages of no greater than $20,000.

Takeaways

All New York employers are required to take affirmative steps to adopt, distribute and post a compliant plan by August 4, 2021 and then to take additional detailed steps if an AID is designated. While the NY HERO Act is forward looking in the event of another communicable disease outbreak, the terms of the plan cover the same types of preventative measures that were required by New York State during the COVID-19 pandemic and should be familiar to employers.

Stacy L. Landau co-authored this article.

© Copyright 2021 Sills Cummis & Gross P.C.National Law Review, Volume XI, Number 194
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About this Author

Jill Turner Lever Employment Lawyer Sills Cummis Gross Law Firm
Of Counsel

Jill Turner Lever practices in all aspects of employment law.  She advises clients on a wide range of employment law issues including day-to-day advice and counsel on compliance with federal, state and local employment laws.  Ms. Lever drafts employment agreements, separation agreements, employee handbooks and human resources policies.  She provides advice on handling complaints of sexual and other forms of workplace harassment.  

973-643-5691
Amy H. Sachs Attorney Employment Law Sills Cummis and Gross Newark NJ
Associate

Amy H. Sachs is an Associate in the Sills Cummis & Gross Employment and Labor Practice Group. She represents and advises management in connection with employment disputes before federal and state courts and agencies. She also counsels employers on human resources issues.

Ms. Sachs was a Law Clerk to the Honorable David H. Ironson, J.S.C. in the Superior Court of New Jersey, Law Division. During law school, Ms. Sachs interned with the United States Equal Employment Opportunity Commission and served as a Student Advocate in the Seton Hall Law...

973-643-7000
Patricia Prezioso Labor Lawyer Sills Cummis Gross Law Firm
Member

Patricia M. Prezioso is Chair of the Sills Cummis & Gross Employment and Labor Practice Group.  She is an active litigator and counselor, with her practice focusing on assisting businesses with issues relating to their employees, including defending claims and lawsuits brought by employees against their employers, sexual harassment and discrimination, whistleblower, New Jersey Conscientious Employee Protection Act (“CEPA”), defending or enforcing restrictive covenants, and claims arising from the Fair Labor Standards Act (“FLSA”) and Equal Pay Act. Ms. Prezioso investigates and...

973-643-5041
David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney
Member

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Grace Byrd Employment Attorney Sills Cummis Law Firm
Of Counsel

Grace A. Byrd is Of Counsel to the Sills Cummis & Gross Employment and Labor Practice Group.

Ms. Byrd has worked with business owners, executives and other professionals to develop and execute well–thought–out and practical legal strategies to effectively achieve their litigation and business goals.  She counsels with an eye towards helping clients meet their business objectives while remaining legally compliant.

She has represented corporate clients from a range of industries, including financial services, health...

973-643-6792
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