September 19, 2021

Volume XI, Number 262

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New York HERO Act: Exposure Prevention Standard and Model Plans Are Here

On May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which “mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic.”

On July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published an Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan. The agency also published industry-specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

The NYS DOL standard does not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and disease.”

In accordance with the act, employers must adopt a written exposure prevention plan by August 5, 2021. Employers will have an additional 30 days, or until September 4, 2021, to communicate the existence of such plan to employees, or must do so “within fifteen days after reopening after a period of closure due to airborne infectious disease.” Per the act, if an employer has a handbook, the plan must be included in the handbook. In addition, employers must post the plan “in a visible and prominent location within each worksite,” with the exception of a vehicle that serves as a worksite. In addition to the communication protocols outlined in the act, the NYS DOL standard specifies that during an outbreak of an airborne infectious disease, employers must provide a verbal review of the plan, provide each employee with a copy of the plan in English or in the primary language of the employee, post the plan conspicuously in the workplace, and ensure that it is accessible to employees during all shifts.

Under the act, employers may either adopt the NYS DOL model plan applicable to their industry or “establish an alternative plan that meets or exceeds the standard’s minimum requirements.” According to the standard, “[a]ny exposure prevention plan adopted by an employer shall contain [the outlined] exposure controls” and must “consider and incorporate controls applicable to the worksite as outlined in the appropriate industry specific model templates.”

The NYS DOL also clarified that the exposure prevention plans will only be activated “when an airborne infectious disease 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.” While the COVID-19 pandemic is ongoing, the NYS DOL stated that as of the date of the publication of the model plan, an airborne infectious disease designation has not been made. Accordingly, while employers must adopt exposure prevention plans under the law, such plans are not required to be in effect until the commissioner makes such a designation.

Section 2 of the act, which takes effect on November 1, 2021, requires all private employers with at least 10 employees to allow employees to establish a joint employer-employee committee authorized to raise workplace health and safety issues and evaluate applicable policies. The NYS DOL is expected to release guidance regarding the implementation of these committees in the coming months.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 190
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About this Author

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Simone Francis concentrates her practice in the areas of employment litigation, environmental counseling and litigation, and general litigation. She has represented a range of large, mid-sized, and small employers in litigation before the federal and local courts in the U.S. Virgin Islands and elsewhere in the United States, and also has acted as an advocate before administrative tribunals, including the Equal Employment Opportunity Commission, the Virgin Islands Department of Labor, the Civil Rights Commission, and the Public Employees Relations Board. In addition, Ms....

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Jamie Haar, employment lawyer,Ogletree
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Jamie Haar is an Associate in Ogletree Deakins' New York City office. Ms. Haar's practice focuses on representing employers in labor and employment matters including discrimination, harassment, retaliation, wrongful termination, equal pay, and wage and hour claims. Ms. Haar has experience representing clients in a wide array of industries in labor and employment litigation before federal, state and local courts, agencies, mediators, and arbitrators. Ms. Haar counsels and advises clients on compliance with federal, state, and city anti-discrimination laws and wage and hour laws as well as...

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