GOVERNOR HOCHUL ANNOUNCES DESIGNATION OF COVID-19 AS AN AIRBORNE INFECTIOUS DISEASE UNDER NEW YORK STATE'S HERO ACT

Posted September 9, 2021

 

Governor Kathy Hochul announced that the commissioner of health has designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State's HERO Act, which requires all employers to implement workplace safety plans in the event of an airborne infectious disease, helping to prevent workplace infections. The NY HERO Act mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. Under the law, all employers are required to adopt a workplace safety plan, and implement it for all airborne infectious diseases designated by the New York State Department of Health. Employers can adopt a model safety plan as crafted by the New York State Department of Labor, or develop their own safety plan in compliance with HERO Act standards.

Under the law, all employers are required to adopt a workplace safety plan, and implement it for all airborne infectious diseases designated by the New York State Department of Health. Employers can adopt a model safety plan as crafted by the New York State Department of Labor, or develop their own safety plan in compliance with HERO Act standards.

"While we continue to increase our vaccination numbers, the fight against the Delta variant is not over, and we have to do everything we can to protect our workers," Governor Hochul said. "This designation will ensure protections are in place to keep our workers safe and support our efforts to combat the virus and promote health and safety."

The HERO Act's purpose is to ensure that businesses are prepared with protocols and resources to protect their employees and the public from the spread of airborne infectious diseases, like COVID's Delta variant

Under the HERO Act, the DOL in consultation with the DOH has developed a new 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. Additional information and industry-specific templates for employers are available on the DOL's website: https://dol.ny.gov/ny-hero-act.

 

The following  information regarding the Hero Act had been sent to all of you in emails on May 5, July 8 and August 25, 2021:

 

ALERT: New York Health and Essential Rights Act/NY HERO Act

Preventing occupational exposure to an airborne infectious disease Law

Back in early may we alerted you regarding A2681B Reyes/S 1034-B Gianaris, (New York Health and Essential Rights Act/NY HERO Act), an act to amend the labor law, in relation to preventing occupational exposure to an airborne infectious disease.  This bill protects New Yorkers from exposure to airborne infectious diseases by reducing workplace transmission and community spread through enforceable health and safety standards. Additionally, this bill permits workplace health and safety committees which allows employers and employees to work together to stop the spread of airborne infectious diseases. The Governor signed this bill on 05/05/21; Chapter 105 of 2021; Governor’s Approval Message #7.

In his approval message, the Governor has asked the legislature to make technical changes to the bill: giving the Department of Labor and employers more specific instructions in developing and implementing the workplace standards; providing for an immediate requirement for employers to cure violations in order to better protect the safety of workers; limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.

With that, Assemblywoman Reyes introduced A7477 and Senator Gianaris followed with S6768, enacts chapter amendments to statutes requiring model standards for prevention of occupational exposure to an airborne infectious disease.  It amended Chapter 105 of 2021 to effectuate the intent of the law and the issues raised in the Approval Message# 7.  The Governor signed the bill on June 11 and it became Chapter 142 of 2021.

This law required the NYS Department of Labor (DOL) to create industry specific model airborne infectious disease exposure plans and all NYS employers (regardless of size) to adopt such plans within 30 days of DOL posting the model plans.  If an employer deviates from a model plan, they must include employees in the formation of a different plan that meets or exceeds the Hero Act minimum standard requirements.  The airborne infectious disease exposure prevention plans must go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.  Employers (of at least ten employees) are also required to permit employees to establish a joint labor-management workplace safety committee.  Additionally, the law provides employers with a 30-day cure period to correct reported violations.

 

Important Information/Dates

  • DOL posted the model standards (https://dol.ny.gov/ny-hero-act)
  • Employers have 30 days to adopt the standards; by August 5, 2021
  • Employers have an additional 30 days to communicate the adopted standards to employees; by September 4, 2021
  • Joint labor-management workplace safety committees shall be allowed after 180 days; on or after November 1, 2021

The Hero Act Standard, Model Airborne Infectious Disease Exposure Prevention Plan and Industry Specific Templates can be found here: https://dol.ny.gov/ny-hero-act

In the interest of clarity, employers must adopt standards by August 5, 2021.  However, since COVID-19 is not designated by the NYS Commissioner of Health as highly contagious at this time, the standards to do not need to be implemented in the workplace at this time. 

The NYS Health Department has issued an EMERGENCY/PROPOSED RULE MAKING Addition of section 840.1 to Title 12 NYCRR ‘‘Airborne Infectious Disease Exposure Prevention Standard” This section is summarized as follows (see attached notice of the rulemaking):

  • Section 840.1(a), “General Provisions,” sets forth the general provisions including applicability of the regulation and deļ¬nitions.
  • Section 840.1(b), “Exposure Prevention Plan,” sets forth the requirements for an employer adopted Exposure Prevention Plan to eliminate or minimize employee exposure to airborne infectious disease agents designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.
  • Section 840.1(c), “Exposure Controls,” sets forth requirements for employers to select and obtain exposure controls appropriate for the exposure risks and requires that such controls be included in the employer’s Exposure Prevention Plan.
  • Section 840.1(d), “Anti-Retaliation,” prohibits employers from retaliating against employees for exercising their rights under this regulation or an employer’s Exposure Prevention Plan.

The full text of this rule is attached and can be found at https://dol.ny.gov/system/files/documents/2021/08/p764.pdf. Public hearing(s) will be held at: 10:00 a.m., Nov. 17, 2021, location to be announced on Department of Labor website.

N.B.: The NY Hero Act and the proposed rules affect those of you who operate in NYS.  I am including the July 8, 2021 email to make sure all of you are aware of what needs to be done under this new law.

Please let us know if you need any assistance in understanding this implementation and if you need copies of the statue or proposed regulations.