Governor Kathy Hochul announced on September 6, 2021 that the New York State Commissioner of Health has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act, which requires all employers to implement their airborne infectious disease workplace safety plans.

As we previously reported, the NY HERO Act required all employers to adopt an airborne infectious disease workplace safety plan by August 5, 2021 and to implement the plan upon the New York State Department of Health’s (“NYDOH”) designation of an airborne infectious disease as a highly contagious communicable disease. Employers can adopt a model safety plan as crafted by the New York State Department of Labor (“DOL”) or develop their own safety plan in compliance with NY HERO Act standards. The standards and model plans, as well as industry-specific templates, are available on the DOL’s website.

The workplace safety plans must, at a minimum, address the following safety measures:

• Employee health screenings: Employees must be screened for symptoms of the infectious disease at the beginning of the workday, in accordance with guidance issued by the NYDOH or the Centers for Disease Control and Prevention (“CDC”), as applicable.
• Face coverings, personal protective equipment, and effective social distancing: Employees must wear face coverings and maintain physical distancing, each as deemed appropriate and in accordance with guidance issued by the NYDOH or CDC, as applicable. Additionally, personal protective equipment that is identified as necessary for the protection of the employee must be provided and maintained in a sanitary and reliable condition at the expense of the employer.
• Workplace cleaning protocols and workplace hygiene: Employers must determine and implement an appropriate plan for cleaning and disinfection that includes the methods of decontamination based upon the location, facility type, type of surface(s) to be cleaned, type of material present, tasks or procedures being performed in the area, and as otherwise directed by NYDOH or CDC for the disease outbreak. Additionally, Employers must provide handwashing facilities or, if not practical and feasible, provide hand sanitizing facilities and/or supplies.
• Isolation or quarantine protocols: Employers must limit the exposure of other individuals to employees demonstrating any symptoms of an airborne infectious disease, follow NYDOH or CDC protocols regarding testing, isolation and quarantine before allowing employees to return to the worksite and inform employees of the same.
• Advanced controls to ensure proper air flow, exhaust ventilation or other building airflow technology: In situations where the above-listed measures alone will not provide sufficient protection for employees, Employers should determine whether advanced controls to contain and/or remove the infectious agent, prevent the agent from being spread, or isolate the worker from the infectious agent should be implemented, such as improving ventilation and building airflow.

Employers are required to distribute their work safety plan to all employees and post it in a visible and prominent location within each worksite by September 4, 2021. Employers must also designate one or more supervisory employees to provide a verbal review of the infectious disease standard, employer policies and employee rights, and to enforce compliance with the plan and any other federal, state or local guidance related to preventing the spread of an airborne infectious disease.

Finally, the NY HERO Act includes anti-retaliation protections which prohibit discrimination or adverse actions against employees for following the requirements of these plans, reporting concerns on the implementation of a plan, or refusing to work under noncompliant conditions.

Seward & Kissel will continue to monitor developments and additional guidance in light of this designation. Employers should contact counsel for assistance in complying with existing local, state, and federal reopening guidance and the NY 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.