ATTENTION NEW YORK EMPLOYERS:NYDOL Publishes NY HERO Act Airborne Infectious Disease Prevention Standards and Model Airborne Infectious Disease Prevention Plans

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Governor Cuomo signed the New York Health and Essential Rights Act (the “NY HERO Act”) into law on May 5, 2021, with amendments enacted as of June 7, 2021. The amended law required the New York State Department of Labor (“NYSDOL”) to publish industry-specific workplace health and safety standards and model plans that address infectious disease exposure by July 5, 2021.

This week, the NYSDOL published Airborne Infectious Disease Prevention Standards and Model Airborne Infectious Disease Prevention Plans on its website (CLICK HERE), as required by this Act. For certain industries (agriculture, construction, delivery services, domestic workers, emergency response, food service, manufacturing and industry, personal services, private education, private transportation and retail), industry-specific Model Airborne Infectious Disease Prevention Plans are available. Model plans will also be available in other languages, including Spanish. 
By August 4, 2021, employers must either adopt the applicable Model Airborne Infectious Disease Prevention Plan provided by the NYSDOL or establish an alternative plan that meets or exceeds the minimum requirements set forth in the published Airborne Infectious Disease Prevention Standards. An employer that develops its own alternative prevention plan must do so in accordance with an applicable collective bargaining agreement or, where no such collective bargaining agreement exists, with “meaningful participation of employees.” Adopted plans will also be subject to any additional or greater requirements arising from a declaration of a state of emergency due to an airborne infectious disease, as well as any federal standards.

Employers are required to provide a copy of their plan to employees in English as well as in the employee’s identified primary language within thirty (30) days of adoption of the plan (and no later than September 3, 2021); within fifteen (15) days after reopening after a period of closure due to airborne infectious disease; and upon hire to newly hired employees. Employers must also post their plan in a visible and prominent location within each worksite and include the plan in their employee handbook.

The New York State Commissioner of Health is responsible for designating an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public health. If this designation has been made, the health and safety protocols within employer plans must be implemented within the workplace.  The NYSDOL will prominently display any such designation for employers on its website. Currently, no such designation has been made; therefore employers need not do anything further at this time other than prepare their plans and provide notice to employees that such plans have been adopted.

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