HERO Act

New York’s Health and Essential Rights Act – referred to as the NY HERO Act - is in effect now and applies to nearly all New York employers, regardless of size.   The purpose of the law is to protect employees in the event of an outbreak of an airborne infectious disease.  There was a delay in doing so, but New York now has designated COVID-19 as an airborne infectious disease under the law.

In light of the designation, covered employers who have not done so already must do the following, now:

1. Establish a written Exposure Prevention Plan. While employers can create their own plans in accordance with the law’s requirements, the NYS Department of Labor has provided model plans for use. Model plans for specific industries can be found here, at the bottom: https://dol.ny.gov/ny-hero-act. A more general model plan, applicable to most office environments, is here: https://dol.ny.gov/system/files/documents/2021/07/model-airborne-infectious-disease-exposure-prevention-plan-p765.pdf. The plan must be included in the employer’s employee handbook, if it has one; be provided to each employee; be posted in a visible and prominent location in the workplace; and be accessible to employees during all shifts.

2. Designate at least one supervisory-level employee to enforce the Exposure Prevention Plan in the event that an infectious disease designation is made by the State, which, again, now has occurred with respect to COVID-19.

3. If the Exposure Prevention Plan was established previously, review and update it, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by Federal, State, or local authorities.

4. Promptly provide a verbal review of the Exposure Prevention Plan to employees. The supervisory employee who conducts the review must verbally inform (either in person or by telephone) all employees of the Plan’s existence and where it is physically located in the workplace. We strongly recommend documenting the “verbal review” by having employees sign an “attendance sheet” confirming that each employee was advised of the Plan’s existence, location, and substance.

So long as the designation of an airborne infectious disease is in effect, a covered employer must:

1. Monitor and maintain exposure controls; and

2. Regularly check for updated information from the NYS Department of Health and the CDC, and update the Exposure Prevention Plan as necessary to reflect that information.

Employers may have heard that the new law also requires the establishment of a “joint labor-management workplace safety committee,” comprising employer-designees and employees.  That requirement does not go into effect until November, and we expect to see regulatory guidance between now and then.