Private employers with a physical location in the State of New York have a fast approaching deadline to comply with the Health and Essential Rights Act (the HERO Act).  The HERO Act requires employers to adopt an airborne infectious disease exposure prevention plan to protect employees during any future disease outbreak.

 What’s the Background?

On July 6, 2021, the New York Department of Labor (DOL) published the HERO Act Airborne Infectious Disease Exposure Prevention Standard (the Standard); the Model Airborne Infectious Disease Exposure Prevention Plan (the Model Plan); and various industry-specific model plans (including agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail industries).

 Who is Covered?

All private employers with a physical location in New York State.

 What are the Deadlines?

•                   August 5, 2021 – employers must either adopt the Model Plan or create their own plan, which must meet or exceed the minimum requirements of the Model Plan.

•                   September 4, 2021 – employers must notify and make their plan available to all employees. Employers must also provide the plan to new hires and employees within 15 days after reopening from a closure due to an airborne infectious disease.  Note that employers need not put these plans into practice until the New York Department of Health (DOH) declares a current airborne disease threat (as of publication, no such threat has been declared).

•                   November 1, 2021 – employers with 10 or more employees must begin allowing employees to form joint labor-management workplace safety committees, with at least two-thirds of the committee’s membership comprised of non-supervisory employees.

 What is Required?

The Standard sets forth the minimum obligations for the plans, which includes the following:

•                   health screening

•                   face coverings

•                   physical distancing

•                   hand hygiene facilities

•                   cleaning and disinfection

•                   availability of personal protective equipment

The Standard also has an anti-retaliation provision forbidding employers from discriminating, threatening, retaliating against or taking adverse action against any employee for exercising their rights under the plan, reporting a violation of the plan, reporting an airborne infectious disease exposure concern or refusing to work where the employee reasonably believes, in good faith, that such work exposes them to an unreasonable risk of exposure to an airborne infectious disease.

 The Model Plan sets forth a threshold of items for employer plans, including:

•                   a list of supervisory employees at each worksite

•                   exposure controls during a designated outbreak

•                   housekeeping during a designated outbreak

•                   infection response during a designated outbreak

•                   training and information during a designated outbreak

•                   plan evaluations during a designated outbreak

•                   retaliation protections and reporting of any violations

Employer plans must also include details about how the employer will train employees, including, among other things, the infectious agent and the disease it can cause; the signs and symptoms of the disease; how the disease can be spread; an explanation of the exposure prevention plan; the activities and locations at the worksite that may involve exposure to the infectious agent; and the use and limitations of exposure controls.

 What Should Employers Do Now?

1.      Create the required plan

2.      Distribute the plan to employees

3.      Post the plan online or at a prominent location in the workplace, i.e., where typical employment compliance notices are posted

4.      Designate supervisors at each worksite to have responsibility for ensuring compliance with the plan