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This week, Governor Kathy Hochul announced that the New York Department of Health has designated COVID-19 to be a highly contagious communicable disease that presents a risk of harm to the public under the New York Health and Essential Rights Act (the “NY HERO Act”).

Because of this designation, employers are now required by the NY HERO Act to take the following actions:

  1. Immediately review their Airborne Infectious Disease Prevention Plan(s) and update the plans as necessary with all current guidance and requirements;
  2. Finalize and promptly activate their Airborne Infectious Disease Prevention Plan(s);
  3. Provide a verbal review of the plan(s) with their employees (in person is not required; can be by audio or video conferencing technology); and
  4. Provide each employee with a copy of their Airborne Infectious Disease Prevention Plan(s) in English or their primary language (if available from the Department of Labor) and post the plan at all required work sites for employees to access during work shifts.

Before this designation, all non-governmental employers were only required under the NY HERO Act to adopt workplace health and safety protection plans by August 5, 2021; distribute such plans to employees in the employee’s primary language (if available from the Department of Labor) by September 7, 2021; and post their plans in a visible and prominent location within each work site and include the plan in their employee handbook. With this recent designation, employers must now activate their plans.

The New York State Department of Labor published Airborne Infectious Disease Exposure Prevention Standards and Model Airborne Infectious Disease Prevention Plans on its website for employers to adopt, including industry-specific plans for certain industries (agriculture, construction, delivery services, domestic workers, emergency response, food service, manufacturing and industry, personal services, private education, private transportation and retail). The Department of Labor began publishing these documents in Spanish, and industry-specific Spanish versions are expected to be published in the coming days.

The Department of Labor has also recently posted FAQs that clarify how the NY HERO Act applies to certain workforces. Specifically, the NY HERO Act does not apply to any employee or employer within the coverage of the Occupational Safety and Health Administration’s (“OSHA’s”) new Emergency Temporary Standard for Healthcare or any other temporary or permanent OSHA standard on COVID-19 or general airborne infectious diseases. The NY HERO Act also does not apply to teleworkers or other work sites that the employer does not have the ability control. Additionally, the FAQs explain that a work site generally includes employer-provided housing and transportation, and that employers may establish more than one plan for multiple work sites. However, posting is not required where the work site is a vehicle.

In addition to the requirements currently in effect, the NY HERO Act also requires that employers with ten or more employees permit workers to establish and administer a joint labor-management workplace safety committee by November 1, 2021. The Department of Labor will be publishing HERO Act regulations for additional guidance on workplace safety committee requirements.

If you have any questions relating to the NY HERO Act or would like guidance relating to your Infectious Disease Exposure Prevention Plan or any other policy, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.


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