By Joseph S. Brown, Esq.
As we previously reported, on Labor Day (September 6, 2021), New York 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. This designation, originally set to expire on September 30, 2021, required all employers to implement workplace safety plans under the HERO Act. More recently, the Commissioner of Health quietly extended the designation until October 31, 2021 and the New York State Department of Labor (“NYSDOL”) released updated Information & FAQs on the HERO Act and updated the Model Airborne Infectious Disease Exposure Prevention Plan. This alert summarizes these recent developments.
New Face Covering and Physical Distancing Requirements
NYSDOL updated its requirement for face-coverings contained in its Model Plan so that it now distinguishes between workplaces that are fully vaccinated and those workplaces which are not.
For a workplace “where all individuals on premises, including but not limited to employees, are fully vaccinated” the updated Model Plan states: “Appropriate face coverings are recommended, but not required, consistent with New York State Department of Health and the Centers for Disease Control and Prevention [CDC] applicable guidance, as of September 16, 2021.”
For a workplace where all individuals on the premises are not fully vaccinated (applicable for most workplaces), the updated Model Plan provides: “Employees will wear appropriate face coverings in accordance with guidance from State Department of Health or the [CDC], as applicable.”
As to physical distancing, the updated Model Plan now states that “Physical distancing will be used, to the extent feasible, as advised by guidance from State” in contrast to the prior version which provided “use a face covering when physical distance cannot be maintained.”
These changes to the Model Plan have raised more questions than answers. Significantly, NYSDOL has not revised its Emergency Regulation, which states that “the employer shall require that employees wear appropriate face coverings when physical distancing cannot be maintained” and in accordance with applicable guidance from State Department of Health or CDC, as applicable. The CDC (according to guidance last updated on August 12, 2021) recommends that anyone who is not fully vaccinated wear a mask in “indoor public places.” Employers who have already adopted workplace safety plans should review and update their plans accordingly.
Updated FAQs and Information on the HERO Act
On September 30, 2021, NYSDOL updated its HERO ACT Information & FAQs - Section 1 information sheet. In many respects, the updated information sheet simply tracks the statutory language and confirms many common understandings about the HERO Act. Some of the more noteworthy information is summarized below.
Who is Covered by Section 1 of the HERO Act?
Several of the new questions address who is covered by Section 1 of the HERO Act, which requires every private employer in New York State to adopt a safety and health plan to protect employees from airborne infectious diseases:
- Section 1 of the HERO Act applies to people at all work sites over which employers have the ability to exercise control, including independent contractors, individuals working for staffing agencies, and other workers not traditionally defined as employees.
- It does not cover employees at any work site that the employer does not have the ability to control, including most telework/telecommuting.
- It does not apply to a business with no employees other than the owner.
- It does not apply to employees who are covered by OSHA’s emergency temporary standard for health care workers related to COVID-19, which became effective on June 21, 2021.
Section 1 of the HERO Act also does not apply to employees covered by any other OSHA standard specifically related to airborne infectious diseases or COVID-19 in particular. Currently, OSHA does not have such a standard, but NYS DOL will update information if and when OSHA does create a standard that applies to any additional employees.
Expect Regulations to Be Issued Regarding Section 2 of the HERO Act
Section 2 of the HERO Act, which takes effect on November 1, 2021, requires employers who employ at least ten employees to allow employees to form a workplace safety committee. The information sheet states that NYSDOL will provide guidance on Section 2 of the HERO Act prior to November 1, 2021.
In sum, employers that have not yet adopted a plan 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 given the passage of the August 5, 2021 deadline for doing so. Employers who have already adopted plans should review their plans in light of the updated guidance and Model Plan. Finally, employers should continue to monitor information from the NYSDOL concerning the HERO Act, including the expected guidance concerning section 2 of the act.
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