New York Health and Essential Rights Act/NY HERO Act Emergency Rule Making

Posted August 25, 2021

Please find the information below from the NYS PHCC Lobbyist, Nick Barrella.

Regarding New York Health and Essential Rights Act/NY HERO Act preventing occupational exposure to an airborne infectious disease. 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 (click here for the notice of the rulemaking):

 

• Section 840.1(a), “General Provisions,” sets forth the general provisions including applicability of the regulation and definitions.

 

• 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 here.



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.

 

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

 

NOTE: As of this date, while the State continues to deal with COVID-19 and a risk still exists, no designation is in effect at this time. Please check the websites of Departments of Health and Labor for up-to-date information on whether a designation has been put into effect, as any such designation will be prominently displayed. No employer is required to put a plan into effect absent such a designation by the Commissioner of Health.

 

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. In other words, there needs to be a plan in place, but no action to implement that plan is needed at this time.

Important Documents:

• Article 7 section 218-B of the Labor Law

• NYS DOL’s 4 page outline of the NY Hero Act, The Airborne Infectious Disease Exposure Prevention Standard