The New York State Department of Labor (DOL) published the Airborne Infectious Disease Exposure Prevention Standard (the Standard) on July 6 pursuant to the New York Health and Essential Rights Act (HERO Act) as well as a template compliant safety plan. By August 5, 2021, employers must either adopt an applicable template plan or establish an alternative plan that meets the Standard’s minimum requirements. While employers must make available and communicate the existence and contents of their plan to employees by September 4, 2021, they do not need to actually implement the safety controls in the plan until the New York Department of Health declares an outbreak of an infectious disease, which has not happened yet.
As noted in our previous LawFlash, the HERO Act was signed into law in May 2021. The HERO Act requires employers to adopt airborne infection disease exposure prevention plans. Pursuant to the HERO Act, the DOL was directed to create model standards which set the minimum requirements that all workplaces must follow to limit the risk of infectious disease exposure.
On July 6, 2021 the DOL published its Airborne Infectious Disease Exposure Prevention Standard pursuant to the HERO Act as well as a template compliant safety plan. In addition to the general template plan, the DOL published template industry-specific plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing/industry, personal services, private education, private transportation, and retail. To date, there is no office-specific workplace template industry plan; however, employers should continue to monitor future guidance from the DOL.
Employers can choose to adopt the applicable policy template/plan provided by DOL or establish an alternative plan that meets or exceeds the Standard’s minimum requirements. The Standard’s minimum requirements are set forth in more detail below – however, in many respects the Standard defers to New York State Department of Health (DOH) and Centers for Disease Control and Prevention (CDC) guidance that may be in effect during a designated outbreak. Pursuant to these protocols, employers must do all of the following:
As with other employment laws, the Standard provides that an employer cannot retaliate against an employee for alleging/reporting a violation of a plan or the HERO Act. Additionally, the Standard prohibits an employer from retaliating against an employee for refusing to work during a designated outbreak where an employee reasonably believes, in good faith, that work exposes them, other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including a plan or the HERO Act. In such circumstances, the employee or their designee/representative must notify the employer of the conditions at issue and the employer first has an opportunity to cure the conditions, unless the employer had or should have had reason to know about the conditions and maintained the conditions. Any records regarding notice of a potential risk must be maintained for two years from the designation of an outbreak.
Every employer with a New York workplace must develop an infectious disease exposure plan which meets the requirements of the Standard by August 5, 2021. Employers must then communicate the plan to employees via verbal review (as noted in more detail below) by September 4, 2021. Note that while the DOL has published model template plans applicable to certain industries, as of now it has only published a generally-applicable Standard which sets forth the minimum requirements for all employers, regardless of industry and the model templates (which are examples and are not required to be used). Importantly, while employers must adopt and communicate plans as required by the HERO Act, employers do not need to implement the various safety control provisions in the plan because the DOH has not designated any airborne infectious disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” No employer is required to put their safety plan into effect absent such a designation by the DOH.
Because no outbreak has been designated by the DOH at this time, only a verbal review of the contents of the plan is required. Specifically, employers must conduct a review of a plan with employees in a manner most suitable for the prevention of an airborne infectious disease, whether in person in a well-ventilated environment with appropriate face masks or personal protective equipment, or via audio or video conference technology. Note that the Standard provides that, where an employer does not adopt the model plan (which far exceeds the minimum Standards), the employer must adopt their alternative plan with a collective bargaining representative or, if the employer is not unionized, “with the meaningful participation of employees.” Accordingly, when announcing a plan, an employer should at minimum note that questions and input are welcome, and log any responses. Employers that maintain an employee handbook must also include their safety plan in their handbook or in a New York addenda to the handbook.
In the event the DOH designates an outbreak and a plan comes into effect, additional notice requirements apply. In those circumstances, an employer will be required to immediately review and update their airborne infectious disease safety plan, provide the verbal review described above again, provide written notice to employees of the plan in English or their primary language, and also post the plan at the workplace. An employer must then ensure a plan is followed and designated a supervisory employee to ensure compliance.
Finally, the workplace safety committee requirements of the HERO Act will take effect November 1, 2021. The DOL has yet to issue applicable guidance.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Leni D. Battaglia
Melissa D. Hill
Kimberley E. Lunetta
Douglas T. Schwarz
August W. Heckman III