As we previously reported, the New York Health and Essential Rights Act, or “HERO Act,” was signed into law on May 5, 2021. The HERO Act requires the New York Department of Labor (“DOL”) to create an airborne infectious disease safety standard to protect employees against exposure and disease during a future airborne infectious disease outbreak and mandates that employers adopt and implement measures that meet or exceed such standard. Additionally, the HERO Act requires employers with 10 or more employees to permit employees to establish a joint labor-management workplace safety committee.

The DOL recently published its Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and industry-specific model plans for the prevention of airborne infectious disease. Employers can choose to adopt the applicable standard and plan provided by DOL or establish an alternative plan that meets or exceeds the standard’s minimum requirements.

The DOL clarifies that while employers must adopt an airborne infectious disease exposure prevention plan by August 5, 2021 and provide employees notice as required by law, employers do not have to enforce the steps of such plan until the New York State Commissioner of Health designates an airborne infectious disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” Currently, no such designation has been made, but the DOL directs employers to check its website and the website of the New York State Department of Health where it will prominently publish and announce any designations.

Key deadlines for New York employers are as follows:

• By August 5, 2021:
  • Employers must adopt the model Prevention Plan (i.e. the industry specific plan or non-industry specific plan) or create its own Prevention Plan that meets or exceeds the DOL’s standards; and
  • Employers must designate the supervisory employee(s) who will be responsible for implementing and enforcing the Prevention Plan.
• By September 4, 2021:
  • Employers must provide employees with a written copy of the Prevention Plan within 30 days after adoption of the plan (but no later than September 4, 2021) and post the plan in a visible and prominent location at each work site.
  • To the extent the employer issues an employee handbook, the plan must also be included in the handbook, and the plan should be distributed to newly hired employees upon hiring, as well.
• By November 1, 2021:
  • New York employers with at least 10 employees must permit employees to establish a joint labor-management workplace safety committee to assist in the review, implementation, and enforcement of health and safety policies in the workplace.

Seward & Kissel will continue to monitor developments and additional guidance in light of these publications. Employers should contact counsel for assistance in complying with existing local, state, and federal reopening guidance and the HERO Act obligations.

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Seward & Kissel has established a COVID-19 Resource Center on our website to access all relevant alerts that we distribute.

If you have any questions regarding the NY HERO Act, COVID-19 reopening guidance, or any other employment issues, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.