Employer Alert – Action Required – NY HERO Act
On September 6, 2021, New York Governor Kathy Hochul announced, amidst widespread concern over the Delta variant, that COVID-19 has been designated as an airborne, highly contagious and communicable disease under the HERO Act. As such, most private employers with employees in New York must put their workplace safety plans into effect to protect the health of their employees and the public. In many cases, these plans will reflect health and safety measures employers have already been implementing in light of COVID-19 and the Delta variant, but employers must ensure they comply with the specific requirements of the HERO Act, as we discuss further below.
As we previously reported, the HERO Act required the Department of Labor and Department of Health to develop an Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. Employers have the option of adopting a model plan, or establishing alternative plans that meet or exceed the standards set forth in the HERO Act in consultation with their employees. Employers were required to adopt the model plan or establish an alternative plan and to distribute it to employees by September 4, 2021, though employers were not required to put the plans into effect at that time. Now, in light of Governor Hochul’s order, employers must put their plans into practice. Model plans and resources are available here: NY HERO Act | Department of Labor.
Employers must immediately review their exposure prevention plan to ensure it is up to date and reflects current public health guidance and requirements, activate the plan, distribute the plan to employees, post a copy of the plan in a visible location, and make sure a copy is accessible during all work shifts. Enforcement responsibilities must be assigned to one or more supervisory employees, and employers must monitor and maintain exposure controls and regularly check for updated information from the New York State Department of Health and the CDC in order to keep their exposure prevention plans up to date.
Additionally, employers must provide employees with training that includes discussion of the signs and symptoms of COVID-19 and how it can be spread, an explanation of the Exposure Prevention Plan, an outline of worksite locations and activities where exposure may occur, the use and limitations of the employer’s exposure controls in the plan, a review of the Airborne Infectious Disease Exposure Prevention Standard, and a review of employees’ rights to be free of discrimination and retaliation under the HERO Act.
The HERO Act includes anti-retaliation protections for employees. This prohibits discrimination or adverse actions taken against an employee for following the requirements of the employer’s exposure prevention plan or reporting concerns on the implementation of a plan. Further, employers may not retaliate against employees for refusing to work where the employee reasonably believes that such work exposes the employee, or other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease because working conditions are inconsistent with applicable laws, rules, or policies, and the employer knew or reasonably should have known about the inconsistent working conditions and failed to cure them.
Training must be provided at no cost to employees and should take place during working hours; if training must take place outside normal work hours, employees must be compensated for the training time with either pay or time off. Training can be provided in person (with appropriate exposure controls) or via telephonic, electronic or other means, and the content and vocabulary used in training shall be appropriate to employees’ education level, literacy and preferred language.