By Joseph S. Brown
On Labor Day (September 6, 2021), Governor Kathy Hochul announced that the Commissioner of Health had designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under the New York Health and Essential Rights (“HERO”) Act. The website for the New York State Department of Labor (NYSDOL) was just updated with the following message: “This designation requires all employers to implement workplace safety plans.”
The article covers what New York employers need to know about implementing their workplace safety plans.
What is the HERO Act?
By way of background, the HERO Act imposes many workplace safety requirements on employers with the aim of preventing the spread of COVID-19 and other airborne diseases. Among those requirements is the obligation to implement an industry-specific health and safety plan. New York State’s Department of Labor (“NYS DOL”) previously released model prevention plans for employer use. Employers had 30 days from the release of the model prevention plans—until August 5, 2021—to adopt their own plan. With the recent designation of COVID-19 as a highly contagious communicable disease, those safety plans are now in effect and must be implemented immediately.
For more information about the Act’s requirements, please see our previous article as well as a PowerPoint that my colleague Katherine Wood and I presented during a webinar for the Better Business Bureau in late July.
How Does My Business Implement the Workplace Safety Plan?
All New York employers should have adopted a workplace safety plan by the August 5, 2021 deadline. Those plans should have been distributed to employees in writing within 30 days and added to the employee handbook (if one exists). Businesses that have not completed this task should immediately adopt a model safety plan available on the NYS DOL website or develop their own safety plan in compliance with HERO Act standards.
Now that the workplace safety plans for COVID-19 are in effect, the HERO Act regulations require employers to do the following:
- Review the worksite’s safety plan and update the plan, if necessary;
- Finalize and promptly activate the worksite safety plan;
- Provide each employee with a copy of the safety plan in English or in the language identified as the primary language of such employees;
- Post a copy of the safety plan in a visible and prominent location at the worksite (except when the worksite is a vehicle) and make that plan accessible to employees during all work shifts;
- Provide a “verbal review” of employer policies, employee rights under HERO Act, and the employer’s exposure prevention plan; and
Ensure the workplace safety plan is effectively followed.
Finally, the HERO Act regulations require employers to regularly check “for updated information and guidance provided by State Department of Health and the Centers for Disease Control and Prevention concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current State Department of Health or Centers for Disease Control and Prevention recommended control measures.” In other words, start implementing your plans but keep your eyes open for more guidance and information from state and federal agencies in the days and weeks to come.
This current designation of COVID-19 will remain in effect until September 30, 2021, at which point the Commissioner of Health will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation. Following the initial publication of this article, NYS DOL issued an FAQ document available here. While many questions remain unanswered, the document provides a good overview of the HERO Act’s basic requirements. The guidance also states that NYSDOL "will be promulgating regulations for the HERO Act in accordance with the State Administrative Procedure Act", but provides no details about the anticipated timing of such regulations. Stay tuned.
Hurwitz & Fine continues to monitor and analyze state and federal updates to employment laws. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.